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May 28, 1998

 

 

Mr. Jack White
RD2, Box 400
Poughquag, NY 12570

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. White:

I have received your letters of May 26 and April 28 and apologize for sending you a
response erroneously that should have been sent to a different person.

In your original letter, you referred to delays that you are experiencing in your attempts
to obtain records from the Town of Beekman. You have asked whether "not having time"
represents a "legitimate excuse" for delaying disclosure.

In this regard, the Freedom of Information Law provides direction concerning the time
and manner in which agencies must respond to requests. Specifically, º89(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..."

While an agency must grant access to records, deny access or acknowledge the receipt
of a request within five business days, when such acknowledgement is given, there is no
precise time period within which an agency must grant or deny access to records. The
time needed to do so may be dependent upon the volume of a request, the possibility that
other requests have been made, the necessity to conduct legal research, the search and
retrieval techniques used to locate the records and the like. In short, when an agency
acknowledges the receipt of a request because more than five business days may be
needed to grant or deny a request, so long as it provides an approximate date indicating
when the request will be granted or denied, and that date is reasonable in view of the
attendant circumstances, I believe that the agency would be acting in compliance with law.

Notwithstanding the foregoing, in my view, every law must be implemented in a
manner that gives reasonable effect to its intent, and I point out that in its statement of
legislative intent, º84 of the Freedom of Information Law states that "it is incumbent upon
the state and its localities to extend public accountability wherever and whenever feasible."
Therefore, if records are clearly available to the public under the Freedom of Information
Law, or if they are readily retrievable, there may be no basis for a lengthy delay in
disclosure. As the Court of Appeals has asserted:

"...the successful implementation of the policies motivating the
enactment of the Freedom of Information Law centers on goals as
broad as the achievement of a more informed electorate and a more
responsible and responsive officialdom. By their very nature such
objectives cannot hope to be attained unless the measures taken to
bring them about permeate the body politic to a point where they
become the rule rather than the exception. The phrase 'public
accountability wherever and whenever feasible' therefore merely
punctuates with explicitness what in any event is implicit"
[Westchester News v. Kimball, 50 NY2d 575, 579 (1980)].

Further, in my opinion, if, as a matter of practice or policy, an agency acknowledges
the receipt of requests and indicates in every instance that it will determine to grant or
deny access to records "within thirty days" or some other particular period, following the
date of acknowledgement, such a practice or policy would be contrary to the thrust of the
Freedom of Information Law. If a request is voluminous and a significant amount of time
is needed to locate records and review them to determine rights of access, thirty days, in
view of those and perhaps the other kinds of factors mentioned earlier, might be
reasonable. On the other hand, if a record or report is clearly public and can be found
easily, there would appear to be no rational basis for delaying disclosure for as much
as thirty days. In a case in which it was found that an agency's "actions demonstrate an
utter disregard for compliance set by FOIL", it was held that "[t]he records finally
produced were not so voluminous as to justify any extension of time, much less an
extension beyond that allowed by statute, or no response to appeals at all" (Inner City
Press/Community on the Move, Inc. v. New York City Department of Housing
Preservation and Development, Supreme Court, New York County, November 9, 1993).

Additionally, I note that it has been held that an agency's contention that a "shortage of
manpower" was not a defense to a denial of access, for a refusal to disclose on that basis
would "thwart the very purpose of the Freedom of Information Law" [see United
Federation of Teachers v. NYC Health & Hospitals Corp, 428 NYS 2d 823 (1980)].

Lastly, I note that I will be speaking at the Beekman Town Hall on June 8 at 7:30 p.m.
I will attempt to clarify open government laws and respond to any questions on the subject
during the event.

I hope to see you there and that I have been of assistance.

Once again, please accept my apologies for the error.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Town Board