March 31, 1997
Mr. Wayne Jackson
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.
Dear Mr. Jackson:
I have received your letter of March 13 in which you asked whether, in my view, Albany County has violated the Freedom of Information Law.
You referred to Resolution 58, which was adopted by the County Legislature in 1978 and states that:
"All requests to inspect and/or copy public records must be submitted in writing to the County Clerk, Albany County Records Access Officer, on request forms provided by the County Clerk..."
In conjunction with the foregoing, you asked, first, whether you can request County government records only from the County Clerk, or whether you may request records from other county officials.
By way of background, §89(1) of the Freedom of Information Law requires the Committee on Open Government to promulgate regulations concerning the procedural implementation of that statute (21 NYCRR Part 1401). In turn, §87(1) requires the governing body of a public corporation to adopt rules and regulations consistent those promulgated by the Committee and with the Freedom of Information Law. Further, §1401.2 of the regulations provides in relevant part that:
"(a) The governing body of a public corporation and the head of an executive agency or governing body of other agencies shall be responsible for insuring compliance with the regulations herein, and shall designate one or more persons as records access officer by name or by specific job title and business address, who shall have the duty of coordinating agency response to public requests for access to records. The designation of one or more records access officers shall not be construed to prohibit officials who have in the past been authorized to make records or information available to the public from continuing to do so."
Based on the foregoing, I believe that the records access officer has the duty of coordinating responses to requests.
Section 1401.2(b) of the regulations describes the duties of a records access officer and states in part that:
"The records access Officer is responsible for assuring that agency personnel:
(1) Maintain an up-to-date subject matter list. (2) Assist the requester in identifying requested records, if necessary. (3) Upon locating the records, take one of the following actions: (i) make records promptly available for inspection; or (ii) deny access to the records in whole or in part and explain in writing the reasons therefor. (4) Upon request for copies of records: (i) make a copy available upon payment or offer to pay established fees, if any; or (ii) permit the requester to copy those records. (5) Upon request, certify that a record is a true copy. (6) Upon failure to locate the records, certify that: (i) the agency is not the custodian for such records; or (ii) the records of which the agency is a custodian cannot be found after diligent search."
Based on the foregoing, the records access officer must "coordinate" an agency's response to requests. Therefore, I believe that requests may be made to County officials generally. In my opinion when an official receives a request, he or she, in accordance with the direction provided by the records access officer, must respond in a manner consistent with the Freedom of Information Law, or forward the request to the records access officer.
Second, I do not believe that an agency can require that a request be made on a prescribed form. The Freedom of Information Law, §89(3), as well as the regulations promulgated by the Committee (§1401.5), require that an agency respond to a request that reasonably describes the record sought within five business days of the receipt of a request. Further, the regulations indicate that "an agency may require that a request be made in writing or may make records available upon oral request" [§1401.5(a)]. As such, neither the Law nor the regulations refer to, require or authorize the use of standard forms. Accordingly, it has consistently been advised that any written request that reasonably describes the records sought should suffice.
It has also been advised that a failure to complete a form prescribed by an agency cannot serve to delay a response or deny a request for records. A delay due to a failure to use a prescribed form might result in an inconsistency with the time limitations imposed by the Freedom of Information Law. For example, assume that an individual requests a record in writing from an agency and that the agency responds by directing that a standard form must be submitted. By the time the individual submits the form, and the agency processes and responds to the request, it is probable that more than five business days would have elapsed, particularly if a form is sent by mail and returned to the agency by mail. Therefore, to the extent that an agency's response granting, denying or acknowledging the receipt of a request is given more than five business days following the initial receipt of the written request, the agency, in my opinion, would have failed to comply with the provisions of the Freedom of Information Law.
While the Law does not preclude an agency from developing a standard form, as suggested earlier, I do not believe that a failure to use such a form can be used to delay a response to a written request for records reasonably described beyond the statutory period. However, a standard form may, in my opinion, be utilized so long as it does not prolong the time limitations discussed above. For instance, a standard form could be completed by a requester while his or her written request is timely processed by the agency. In addition, an individual who appears at a government office and makes an oral request for records could be asked to complete the standard form as his or her written request.
In sum, it is my opinion that the use of standard forms is inappropriate to the extent that is unnecessarily serves to delay a response to or deny a request for records.
Third, you asked whether the notice referenced in §1401.9 of the regulations must be posted "in all sub-divisions of Albany County Government where the public does business with said sub-divisions of County Government". In short, I do not believe that the provision in question requires that notice be posted in all of the locations that you suggested. The cited provision states in relevant part that:
"Each agency shall publicize by posting in a conspicuous location and/or by publication in a local newspaper of general circulation... The name, title, business address and business telephone number of the designated records access officer."
Reference is made to "posting in a conspicuous location" (emphasis mine); posting in more than one location is not required.
Lastly, I would conjecture that Resolution 58 is or represents a portion of the regulations promulgated by the County to implement the Freedom of Information Law. I note that the current Freedom of Information Law became effective on January 1, 1978 and that agencies then were required to adopt the appropriate rules and regulations.
I hope that I have been of assistance.
Robert J. Freeman
cc: Hon. Thomas Clingan, County Clerk