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March 30, 1998

Mr. Joseph M. Norton
Hudson 403E
Dutchess Community College
Pendell Road
Poughkeepsie, NY 12601

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. Norton:

I have received your letter of March 18, as well as the correspondence
associated with it. You have questioned the intent of the law relating to the
maintenance of a subject matter list.

In this regard, I offer the following comments concerning that and
other issues that are pertinent to the correspondence, all of which pertain to
your efforts in obtaining records from Dutchess Community College.

First, as a general matter, the Freedom of Information Law pertains
to existing records, and an agency is not required to create a record in
response to a request [see §89(3)]. Similarly, if records that once existed
have legally been disposed of or destroyed, the Freedom of Information Law
would not apply.

An exception that rule relates to the subject of your inquiry.
Specifically, §87(3) of the Freedom of Information Law states in relevant part

"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

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.
It is suggested that you ask to review the retention schedule applicable to the
College. Alternatively, you could request a copy of the schedule from the
State Archives and Records Administration by calling (518)474-6926.

A second issue of possible significance involves the extent to which
your 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 College,
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 hundreds
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. It is possible
that records falling within the scope of the request may be maintained in
several locations by a variety of units within the College, and that those units
maintain their records by means of different filing and retrieval methods. If
an office maintains all of its records regarding asbestos or hazardous materials
in a single file or perhaps in a series of files that can be readily located, it may
be a simple task to retrieve the records. If, however, records are not
maintained in that manner, 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.

Third, insofar as a request pertains to existing records that can be
located, the Freedom of Information Law is based upon a presumption of
access. Stated differently, all records of an agency are available, except to the
extent that records or portions thereof fall within one or more grounds for
denial appearing in §87(2)(a) through (i) of the Law.

One element of your request involved records relating to employees'
exposure to hazardous materials, and the College denied access to those
records. While I believe that any identifying details pertaining to employees
who might have been exposed to hazardous materials could be deleted on the
ground that disclosure would constitute "an unwarranted invasion of personal
privacy" [see §87(2)(b)], it is possible if not likely that, following appropriate
deletions, other aspects of the records would be available under the law.

Lastly, although the records access officer denied access to certain
records, he did not refer to your right to appeal the denial. Section 89(4)(a)
of the Freedom of Information Law 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
of the entity, or the person therefor designated
by such 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."

Further, the regulations promulgated by the Committee on Open
Government (21 NYCRR Part 1401), which govern the procedural aspects
of the Law, state that:

"(a) The governing body of a public
corporation or the head, chief executive or
governing body of other agencies shall hear
appeals or shall designate a person or body to
hear appeals regarding denial of access to
records under the Freedom of Information

(b) Denial of access shall be in writing
stating the reason therefor and advising the
person denied access of his or her right to
appeal to the person or body established to
hear appeals, and that person or body shall be
identified by name, title, business address and
business telephone number. The records access
officer shall not be the appeals officer"

It is also noted that the state's highest court has held that a failure to
inform a person denied access to records of the right to appeal enables that
person to seek judicial review of a denial. Citing the Committee's regulations
and the Freedom of Information Law, the Court of Appeals in Barrett v.
Morgenthau held that:

"[i]nasmuch as the District Attorney failed to
advise petitioner of the availability of an
administrative appeal in the office (see, 21
NYCRR 1401.7[b]) and failed to demonstrate
in the proceeding that the procedures for such
an appeal had, in fact, even been established
(see, Public Officers Law [section] 87[1][b],
he cannot be heard to complain that petitioner
failed to exhaust his administrative remedies"
[74 NY 2d 907, 909 (1989)].

In sum, an agency's records access officer has the duty individually, or
in that person's role of coordinating the response to a request, to inform a
person denied access of the right to appeal as well as the name and address of
the person or body to whom an appeal may be directed.

I hope that I have been of some assistance.


Robert J. Freeman
Executive Director


cc: Paul Higgins