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September 4, 1997

 

 

Mr. Thomas Grieco
4124 Water Street
Taberg, NY 13471

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. Grieco:

I have received your letter of July 24, as well as the correspondence attached to it. According to your
letter, after your wife's conversation with staff at the Office of the Oneonta County Sheriff's Department, staff
"complained of the inconvenience of [y]our requests, and stated that they are too busy to search for the
documents [you] desire." You wrote that your wife also referred to the requirement that a subject matter list
be prepared.

In this regard, I offer the following comments.

First, it has been held by several courts, including the State's highest court, that compliance with the
Freedom of Information Law is a governmental obligation and that the language of that law "imposes a broad
duty to make certain records publicly available irrespective of the private interests and the attendant burdens
involved" [Gould v. NYC Police Department, 89 NY 2d 267, 279 (1996); see also Doolan v. BOCES, 48 NY
2d 341, 347 (1979)]. As stated in a decision rendered recently: "An agency's disclosure of information
pursuant to a FOIL request is as much a service owed by the agency to the public as the furnishing of police,
fire or sanitation services" (Messinger v. Giuliani, Supreme Court, New York County, NYLJ, September 2,
1997).

Second, the Freedom of Information Law provides direction concerning the time and manner in which
an agency must respond to a request. 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, as a general matter, with certain exceptions, an agency is not required to create or prepare a
record to comply with the Freedom of Information Law [see §89(3)]. An exception to that rule relates to a list
maintained by an agency. Specifically, §87(3) of the Freedom of Information Law states in relevant part that:

"Each agency shall maintain...

c. a reasonably detailed current list by subject matter, of all records in the
possession of the agency, whether or not available under this article."

The "subject matter list" required to be maintained under §87(3)(c) is not, in my opinion, required to identify
each and every record of an agency; rather I believe that it must refer, by category and in reasonable detail, to
the kinds of records maintained by an agency. Further, the regulations promulgated by the Committee on Open
Government state that such a list should be sufficiently detailed to enable an individual to identify a file
category of the record or records in which that person may be interested [21 NYCRR 1401.6(b)]. I emphasize
that §87(3)(c) does not require that an agency ascertain which among its records must be made available or
may be withheld. Again, the Law states that the subject matter list must refer, in reasonable detail, to the kinds
of records maintained by an agency, whether or not they are available.

It has been suggested that the records retention and disposal schedules developed by the State Archives
and Records Administration at the State Education Department may be used as a substitute for the subject
matter list.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Sheriff Middaugh
Records Access Officer