NY.gov Portal State Agency Listing

 

July 9, 1997

 

 

 

Mr. Francis J. Roche
Attorney at Law
P.O. Box 321
Hudson, NY 12534

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. Roche:

I have received your letter of June 9, as well as the
correspondence attached to it. Please accept my apologies for the
delay in response.

According to the materials, on February 4, you wrote to the
Chatham Village Clerk and requested various records concerning the
implementation of the Village's assessment practices. You were
provided with some of the information sought by means of a letter
sent to you by the Clerk on February 6. Since she did not forward
records, i.e., resolutions, notices, etc., you asked for copies of
those kinds of records on February 10. Having received no further
response, you wrote to the Clerk again on March 10 and March 21,
and in the latter communication, you also sought any rules and
regulations of the Village pertaining to the Freedom of Information
Law. On March 24, the Clerk indicated that your requests had been
forwarded to the Village Attorney and advised that you "contact him
for any further information." You wrote, however, that a telephone
call to the Village Attorney "produced nothing."

From my perspective, the Village has failed to comply with the
Freedom of Information Law. In this regard, I offer the following
comments.

First, by way of background, §89(1)(b)(iii) of the Freedom of
Information Law requires the Committee on Open Government to
promulgate regulations concerning the procedural aspects of the Law
(see 21 NYCRR Part 1401). In turn, §87(1)(a) of the Law states
that:

"the governing body of each public corporation
shall promulgate uniform rules and regulations
for all agencies in such public corporation
pursuant to such general rules and regulations
as may be promulgated by the committee on open
government in conformity with the provisions
of this article, pertaining to the
administration of this article."

In this instance, the governing board of a public corporation, the
Village of Chatham, is the Village Board of Trustees, and I believe
that the Board is required to promulgate appropriate rules and
regulations consistent with those adopted by the Committee on Open
Government and with the Freedom of Information Law.

The initial responsibility to deal with requests is borne by
an agency's records access officer, and the Committee's regulations
provide direction concerning the designation and duties of a
records access officer. Specifically, §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."

As such, the Village Board has the obligation to designate "one or
more persons as records access officer". Further, §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."

Assuming that the Clerk is the Village's designated records
access officer, she has the duty of coordinating the Village's
response to requests for records.

Second, in my view, a response indicating that you should
contact the Village Attorney, without more, is inadequate. As you
may be aware, the Freedom of Information Law provides direction
concerning the time and manner in which agencies must respond to
requests. Specifically, §89(3) of the Freedom of Information Law
states in part that:

"Each entity subject to the provisions of this
article, within five business days of the
receipt of a written request for a record
reasonably described, shall make such record
available to the person requesting it, deny
such request in writing or furnish a written
acknowledgement of the receipt of such request
and a statement of the approximate date when
such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the
receipt of a request is given within five business days, or if an
agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my
opinion, be considered to have been constructively denied. In such
a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. That
provision states in relevant part that:

"...any person denied access to a record may
within thirty days appeal in writing such
denial to the head, chief executive, or
governing body, who shall within ten business
days of the receipt of such appeal fully
explain in writing to the person requesting
the record the reasons for further denial, or
provide access to the record sought."

In addition, it has been held that when an appeal is made but
a determination is not rendered within ten business days of the
receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her
administrative remedies and may initiate a challenge to a
constructive denial of access under Article 78 of the Civil
Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57
NY 2d 774 (1982)].

Lastly, the kinds of records that you requested, insofar as
they exist, would, in my opinion, clearly be available. As a
general matter, the Freedom of Information Law is based upon a
presumption of access. Stated differently, all records of an
agency are available, except to the extent that records or portions
thereof fall within one or more grounds for denial appearing in
§87(2)(a) through (i) of the Law. I do not believe that any of the
grounds for denial could properly be asserted to withhold the
records of your interest.

In an effort to enhance compliance with and understanding of
the Freedom of Information Law, copies of this opinion will be
forwarded to Village officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Board of Trustees
Carol M. Simmons, Clerk/Treasurer
Nelson R. Alford, Village Attorney