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October 22, 1997

Mr. Harvey Elentuck
139-15 83 Avenue 326
Jamaica, NY 11435-1517

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
unless otherwise indicated.

Dear Mr. Elentuck:

I have received your note of September 10, which appears on a letter of the same date
addressed to Ron LeDonni, Secretary to the New York City Board of Education.

You focused on a subject that has been considered many times in the past, access to
observation reports pertaining teachers, and you wrote that "the Board of Ed has finally admitted that
observation reports do contain 'statistical or factual tabulations or data', but they still claim the
records are entirely exempt" (emphasis yours). Specifically, in a denial addressed to you on July 25,
Mr. LaDonni wrote that the reports in question "are not final agency determinations and that these
reports consist of opinions and recommendations. The reports do contain statistical or factual
tabulations or data and are therefore exempt from disclosure." Because of the internal inconsistency
in the passage quoted above, it appeared from my perspective that there was a typographical error.
Indeed, having contacted the Board to discuss the matter, I was informed that a word, "not", was
inadvertently omitted from Mr. LaDonni's response, which was intended to state that the reports "do
not" contain statistical or factual data. If that is so, and if the records consist entirely of opinions and
recommendations, I believe that they may be withheld pursuant to §87(2)(g) of the Freedom of
Information Law.

The other issue, which pertains to absence of certification regarding an inability to locate
records following a diligent search, in my opinion involves a matter that has also been considered
previously. That is the requirement in §89(3) of the Freedom of Information Law that an applicant
"reasonably describe" the records sought. If a request does not reasonably describe the records, I do
not believe that an agency would be required to provide the certification. For instance, if an agency
maintains a large record series chronologically, but the applicant seeks records by name, an agency
would not be required to search all of the records in an effort to locate those that have been
requested. In that circumstance, due to the nature of the agency's filing system, no search would have
been made, and consequently, no certification would have to be prepared. On the other hand, if the
applicant requested records chronologically, in a manner consistent with the agency's filing system,
but the agency could not locate the records sought, I believe that the agency would be required to
prepare a certification concerning its search as required by §89(3).

I hope that the foregoing serves to clarify your understanding of the matter and that I have
been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Ron LaDonni
Michael Valenti