March 20, 1998
Mr. Cuyler Burke
P.O. Box 145
Sag Harbor, NY 11963
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
Dear Ms. Burke:
I have received your note in which you asked that I review materials relating to your
request to the Sag Harbor Board of Education for its "rules and regulations of Public
Conduct On School Property (school law section 2801)."
Although certain policies were disclosed to you, none appears to have been adopted
pursuant to the provision of law that you cited. Consequently, you contend that the
Superintendent of Schools is in violation of º240.65 of the Penal Law and º89(8) of the
Public Officers Law, and that the District's records access officer is "liable for refusal to
ensure, by law, compliance with FOIL..."
In this regard, the provision to which you referred, º2801 of the Education Law, states
in relevant part that the board of education of every school district "shall adopt rules and
regulations for the maintenance of public order on school property and shall provide a
program for the enforcement thereof", that such rules and regulations "shall govern the
conduct of students, teachers and other staff as well as visitors and other licensees and
invitees", and that they "shall be filed with the regents and the commissioner of education
not later than ninety days after the effective date of this act." The effective date was
September 1, 1972.
Based on the foregoing, it is clear that the Board was obliged to have adopted rules
and regulations concerning conduct on school property. It is equally clear, in my view,
that any such rules and regulations must be disclosed under the Freedom of Information
Law, for none of grounds for denial of access to records would be pertinent. In short, an
agency's rules and regulations must be disclosed.
Notwithstanding the foregoing, for purposes of clarification, I offer the following
First, in my opinion, neither º240.65 of the Penal Law nor its companion, º89(8) of the
Freedom of Information Law (which is Article 6 of the Public Officers Law) would likely
be applicable. The former states that:
"A person is guilty of unlawful prevention of public access to records
when, with intent to prevent the public inspection of a record pursuant
to article six of the public officers law, he willfully conceals or
destroys any such record."
From my perspective, the preceding may be applicable in two circumstances: first, when
an agency employee receives a request for a record and indicates that the agency does not
maintain the record even though he or she knows that the agency does maintain the
record; or second, when an agency employee destroys a record following a request for
that record in order to prevent public disclosure of the record. I do not believe that
º240.65 applies when an agency denies access to a record, even though the basis for the
denial may be inappropriate or erroneous, or when an agency cannot locate a record that
must be maintained.
Second, º89(1) of the Freedom of Information Law requires the Committee on Open
Government to promulgate regulations concerning the procedural implementation of that
statute (21 NYCRR Part 1401). In turn, º87(1) requires the governing body of a public
corporation to adopt rules and regulations consistent those promulgated by the Committee
and with the Freedom of Information Law. Further, º1401.2 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."
Based on the foregoing, I believe that the records access officer has the duty of
coordinating responses to requests; the Board of Education, the governing body of the
District, is responsible for ensuring compliance with the Freedom of Information Law and
the rules and regulations promulgated under that statute.
Third, an agency is not required to respond instantly to a request or on the day that a
request is made or submitted. Under º89(3) of the Freedom of Information Law, an
agency has up to five business days to respond to a request. That provision states in
relevant 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
acknowledgment of the receipt of such request and a statement of the
approximate date when such request will be granted or denied..."
I hope that the foregoing serves to enhance your understanding of applicable
provisions of law and that I have been of assistance.
Robert J. Freeman
` Executive Director
cc: Board of Education
John Barnes, Superintendent of Schools
Corinne Jones, Records Access Officer