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August 13, 1998

 

Hon. Paul J. Feiner
Town Supervisor
Town of Greenburgh
P.O. Box 205
Elmsford, NY 10523

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 Supervisor Feiner:

I have received your letter of August 5 and the correspondence attached to it.

You wrote that Assemblyman Richard Brodsky "has failed to comply with the Freedom of
Information Request that [you] made for a listing of names people he sent a recent mailing to." In
the request, which is dated July 17, you referred to his announcement that he would send materials
to "every senior citizen in the town about the STAR program." You have sought an advisory opinion
"on whether or not Mr. Brodsky has the right to refuse to acknowledge [your] letter or to provide
[you] with the requested documents."

In this regard, as you may be aware, the State Legislature is subject to provisions in the
Freedom of Information Law are in some instances different from those applicable to agencies of state
and local government. Section 88(1) pertains to the State Legislature and states in relevant part that:

"The temporary president of the senate and the speaker of the
assembly shall promulgate rules and regulations for their respective
houses in conformity with the provisions of this article, pertaining to
the availability, location and nature of records, including, but not
limited to:

(a) the times and places such records are available;

(b) the persons from whom such records may be
obtained..."
I believe that the Assembly's rules include the designation of a records access officer, whose duty
involves the coordination of responses to requests for records of the Assembly. In my view,
Assemblyman Brodsky should either have responded in a manner consistent with the Freedom of
Information Law or forwarded to the request to the records access officer, Ms. Sharon Walsh.

I note, too, that the Freedom of Information Law provides direction concerning the time and
manner in which entities subject to its provisions 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)].

Under the circumstances, you could contact the records access officer to inform her of the
request or consider the request to have been denied and appeal the denial.

With respect to rights of access, in brief, as the Freedom of Information Law applies to
agencies, that statute 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. As the Law applies to the State
Legislature, §88(2) and (3) include reference to certain categories of records that must be disclosed.
Therefore, unless records of the Legislature fall within one or more of those categories of accessible
records, there is no obligation to disclose. From my perspective, it is questionable whether the record
that you requested would fall within the categories of records that must be disclosed by the State
Legislature. Consequently, as a matter of law, a denial of access may be appropriate.

I point out that Assembly Rule VIII deals with public access to Assembly records and that §1
states that:

"It is the intent of the Assembly that central administrative records
maintained by the Assembly be governed by the same presumption of
disclosure which governs access to executive agency records, with
similar enumerated exceptions."

As such, the Assembly, by rule, has chosen to disclose or withhold its records based on standards
similar to those applicable to state and local government agencies.

Section 2(2) of the rules pertains to the ability to withhold records when disclosure would
constitute "an unwarranted invasion of personal privacy". An example of an unwarranted invasion
of personal privacy appearing in the ensuing provisions involves the disclosure of "names, addresses,
numbers or other personal identifying details of telephone communications or mail correspondence
made by or to Members of the Assembly or employees thereof."

I note that in other contexts, it has been advised that personally identifying details based on
age may justifiably be withheld based on considerations of privacy. For instance, lists of senior
citizens who participate in a municipality's program for the aging or lists of children who participate
in a summer recreation program, indicate, by their nature, that certain people fall within particular age
ranges. In those instances, since a class of persons would be identified by means of age, it has been
advised that disclosure would result in an unwarranted invasion of personal privacy.

Lastly, the Freedom of Information Law is permissive; while an entity subject to its provisions
may withhold records in accordance with the grounds for denial, there is no obligation to do so [see
Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)]. Therefore, even though the record sought
might not be available as of right, the Assembly or Assemblyman Brodsky could choose to disclose
it to you.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director
RJF:jm

cc: Hon. Richard Brodsky
Sharon Walsh