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August 15, 1997

 

 

 

Ms. Rita Randall
1917 Call Street
Lake Luzerne, NY 12846

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 Ms. Randall:

I have received your letter of July 21. Having sent a request
to the Town of Lake Luzerne in which you sought "any and all
information kept regarding [your] property", you wrote that the
records access officer indicated that "there was nothing in her
files and would be sending [you] nothing." It is your belief that
the Town does maintain records about you and your property. As
such, you have asked what your rights of access might be and
whether the "Personal Privacy Act" would apply.

In this regard, I offer the following comments.

First, the Personal Privacy Protection Law is applicable only
to state agencies. For purposes of that statute, §92(1) defines
the term "agency" to mean:

"any state board, bureau, committee,
commission, council, department, public
authority, public benefit corporation,
division, office or any other governmental
entity performing a governmental or
proprietary function for the state of New
York, except the judiciary or the state
legislature or any unit of local government
and shall not include offices of district
attorneys."

Based on the foregoing, the Personal Privacy Protection Law
excludes from its coverage "any unit of local government", such as
a town. Consequently, the Personal Privacy Protection Law would
not be applicable to records maintained by a unit of local
government.
Second, if you own property in the Town, I would conjecture
that the Town would maintain some records pertaining to that
property, such as assessment or building code records. However,
often when a request is as broad as you indicated, the issue
involves the requirement imposed by §89(3) of the Freedom of
Information Law that an applicant must "reasonably describe" the
records sought. In considering that standard, the State's highest
court has found that requested records need not be "specifically
designated", that to meet the standard, the terms of a request must
be adequate to enable the agency to locate the records, and that an
agency must "establish that 'the descriptions were insufficient for
purposes of locating and identifying the documents sought'...before
denying a FOIL request for reasons of overbreadth" [Konigsberg v.
Coughlin, 68 NY 2d 245, 249 (1986)].

Although it was found in the decision cited above that the
agency could not reject the request due to its breadth, it was also
stated that:

"respondents have failed to supply any proof
whatsoever as to the nature - or even the
existence - of their indexing system: whether
the Department's files were indexed in a
manner that would enable the identification
and location of documents in their possession
(cf. National Cable Tel. Assn. v Federal
Communications Commn., 479 F2d 183, 192
[Bazelon, J.] [plausible claim of
nonidentifiability under Federal Freedom of
Information Act, 5 USC section 552 (a) (3),
may be presented where agency's indexing
system was such that 'the requested documents
could not be identified by retracing a path
already trodden. It would have required a
wholly new enterprise, potentially requiring a
search of every file in the possession of the
agency']" (id. at 250).

In my view, whether a request reasonably describes the records
sought, as suggested by the Court of Appeals, may be dependent upon
the terms of a request, as well as the nature of an agency's filing
or record-keeping systems. In Konigsberg, it appears that the
agency was able to locate the records on the basis of an inmate's
name and identification number.

In the context of your request, I am unaware of the means by
which the Town maintains records pertaining to property or
residents. If the Town maintains all such records in a file or
group of files that are retrievable on the basis of the terms of
your request, I believe that you would have met the requirement
that the records be reasonably described. On the other hand,
however, it is possible that the Town maintains records falling
within the scope of your request in a number of locations or
departments and by means of different filing systems within those
departments. If records are kept by location or by name, it may be
easy to locate them. If they are kept chronologically, it may not
be possible to locate records sought by means of a name or address.

In short, it is questionable whether your request "reasonably
described" the records as required by law. Rather than requesting
"any and all records", it is suggested that a request include
sufficient detail to enable agency staff to locate and identify the
records of your interest.

Lastly, when a request reasonably describes a record and an
agency indicates that it does not maintain or cannot locate the
record, an applicant for the record may seek a certification to
that effect. Section 89(3) of the Freedom of Information Law
provides in part that, in such a situation, on request, an agency
"shall certify that it does not have possession of such record or
that such record cannot be found after diligent search." If you
consider it worthwhile to do so, you could seek such a
certification.

I point out that in Key v. Hynes [613 NYS 2d 926, 205 AD 2d
779 (1994)], it was found that a court could not validly accept
conclusory allegations as a substitute for proof that an agency
could not locate a record after having made a "diligent search".
However, in another decision, such an allegation was found to be
sufficient when "the employee who conducted the actual search for
the documents in question submitted an affidavit which provided an
adequate basis upon which to conclude that a 'diligent search' for
the documents had been made" [Thomas v. Records Access Officer, 613
NYS 2d 929, 205 AD 2d 786 (1994)].

Enclosed is a copy of "Your Right to Know", which describes
the Freedom of Information Law and includes a sample letter of
request.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

Enc.

cc: Records Access Officer