December 8, 1997
Ms. Laury L. Dowd
Town of Southold
Southold, NY 11971
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. Dowd:
I have received your letter of October 30 in which you sought
guidance in relation to a request made under the Freedom of Information
According to your letter, the requests involves "all grants, grant
applications, grant information - federal, state, county, private or other
relating to police, law enforcement, traffic control, police headquarters, cells,
imprisonment, civilian, personnel and so on - all information from 1968."
Your efforts in attempting to convince the applicant "to focus her request"
have failed and you noted that:
"The police department grant information
cannot be easily retrieved, since it is not
cataloged as grants. The request, as
formulated, would require hand review of
thirty years worth of police department files to
find the requested items."
From my perspective, the issue involves the extent to which the
request "reasonably describes" the records sought as required by §89(3) of the
Freedom of Information Law. I point out that it has been held by the Court
of Appeals that to deny a request on the ground that it fails to reasonably
describe the records, an agency must establish that "the descriptions were
insufficient for purposes of locating and identifying the documents sought"
[Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].
The Court in Konigsberg found that the agency could not reject the
request due to its breadth and 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 system.
In Konigsberg, it appears that the agency was able to locate the records on the
basis of an inmate's name and identification number.
While I am unfamiliar with the recordkeeping systems of the Town,
to extent that the records sought can be located with reasonable effort, I
believe that the request would have met the requirement of reasonably
describing the records. On the other hand, if the records are not maintained
in a manner that permits their retrieval except by reviewing perhaps hundres
or even thousands of records individually in an effort to locate those falling
within the scope of the request, to that extent, the request would not in my
opinion meet the standard of reasonably describing the records. Further, in
the context of the request, a real question involves, very simply, where Town
officials might begin to look for records. It is possible that records falling
within the scope of the request may be maintained in several locations by a
variety of units within Town, and that those units maintain their records by
means of different filing and retrieval methods. If an office maintains all of its
records regarding grants, since the beginning of its existence, in a single file,
it may be a simple task to locate the records. If, however, records are not
maintained by subject, but rather are kept chronologically, locating the records
might involve a search, in essence, for the needle in the haystack. Based on
the holding by the State's highest court, an agency is not required to engage
in that kind of effort.
In short, insofar as the request fails to meet the standard of reasonably
describing the records, I believe that it may be rejected by the Town.
I hope that I have been of assistance.
Robert J. Freeman
cc: Jody Adams