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July 16, 1998

 

Mr. Clarence R. Darrah
Rte. 3, Box 2013
Cadyville, NY 12918

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. Darrah:

As you are aware, your letter of June 25 addressed to Attorney General Vacco has
been forwarded to the Committee on Open Government. The Committee, a unit of the
Department of State, is authorized to advise with respect to the Freedom of Information Law.

You wrote that you have sought records under the Freedom of Information Law from
the Supervisor of the Town of Plattsburgh but that your request has been "ignored." The
records sought involve the salaries of persons employed by the Clinton County Fair. In
conjunction with your request, you have been asked why you want the information and who
is the subject of your request.

In this regard, I offer the following comments.

First, the Freedom of Information Law provides direction concerning the time and
manner in which agencies must respond to requests. Specifically, §89(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..."

If neither a response to a request nor an acknowledgement of the receipt of a request is given
within five business days, or if an agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my opinion, be considered
to have been constructively denied. In such a circumstance, I believe that the denial may be
appealed in accordance with §89(4)(a) of the Freedom of Information Law. That provision
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, 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."

In addition, it has been held that when an appeal is made but a determination is not
rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of
the Freedom of Information Law, the appellant has exhausted his or her administrative
remedies and may initiate a challenge to a constructive denial of access under Article 78 of
the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774
(1982)].

Second, when records are accessible under the Freedom of Information Law, it has
been held that they should be made equally available to any person, regardless of one's status,
interest or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51
AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals, the State's highest
court, has held that:

"FOIL does not require that the party requesting records make
any showing of need, good faith or legitimate purpose; while
its purpose may be to shed light on government decision-making, its ambit is not confined to records actually used in
the decision-making process. (Matter of Westchester
Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full
disclosure by public agencies is, under FOIL, a public right
and in the public interest, irrespective of the status or need of
the person making the request" [Farbman v. New York City
Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].

Farbman pertained to a situation in which a person involved in litigation against an agency
requested records from that agency under the Freedom of Information Law. In brief, it was
found that one's status as a litigant had no effect upon that person's right as a member of the
public when using the Freedom of Information Law, irrespective of the intended use of the
records. Similarly, unless there is a basis for withholding records in accordance with the
grounds for denial appearing in §87(2), the use of the records and the intent of the applicant
are in my opinion irrelevant.

Third, it is unclear why you believe that the information in question would be
maintained by a town. I am unaware of any requirement that the information be submitted
to or maintained by a town. As I understand the law on the subject, a county fair typically
is conducted by an agricultural or horticultural corporation created pursuant to §1409 of the
Not-for-Profit Corporation Law. As a not-for-profit corporation, such an entity would not
be subject to the Freedom of Information Law. Neverthless, §1409(d) states that:

"Any county agricultural corporation receiving after May
tenth, nineteen hundred and twenty, money from any county
shall, through its secretary, make annually to the board of
supervisors a detailed statement with vouchers showing the
disbursement during the year of all moneys so received."

Further, §1409(i) states that:

"On or before December fifteenth in each year, the directors
of every agricultural or horticultural corporation shall make a
verified report to the commissioner of agriculture and markets
of the transactions of the corporation for the preceding twelve
months giving full details of the receipts and expenditures
thereof, with a list of premiums awarded and to whom and for
what awarded."

Based upon the preceding, records regarding the financial affairs of an agricultural and
horticultural corporation that runs a county fair would be available from a county board of
supervisors and the Department of Agriculture and Markets.

As you requested, enclosed is an explanatory brochure concerning the Freedom of
Information and Open Meetings Laws.

I hope that I have been of assistance. Should any further questions arise, please feel
free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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