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September 17, 1998

Ms. Linda Mangano
38 Ellis Place
Ossining, NY 10562

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 Ms. Mangano:

I have received your letter of September 4 and the materials attached to it.

According to your letter:

"Within the past year or so the Clerk in the Parking Violations
Bureau has shown [you] at least two file folders containing
hundreds and hundreds of parking summonses that are
‘awaiting trial'. On 08/26/98 [you] wrote a FOIL request to
Mrs. Fuesy, Village Clerk, asking to review said pending
parking summonses. Not being fully familiar with the PVB's
filing system, [you] asked for what [you] considered every
feasible manner of filing."

You added in your request that you are not interested in names or other personal information
contained in the records, but rather in "the number of summonses awaiting a trial date and the
dates of the receipt of said summonses."

The clerk of the Parking Violations Bureau advised the Village Clerk that " the
information requested.... is not available in list or any other form." Consequently the clerk
wrote that the information sought "is not available in the form requested." Nevertheless, you
wrote that you:

"personally have been shown file folders in the PVB's
possession that contained HUNDREDS AND HUNDREDS
of parking summonses awaiting trial. The PVB would NOT
have to "create a file" to fill [your] request; all they'd have to
do is give [you] the file folders containing these summonses
which [you] had already been shown, thought at that time
[you] did not review the entire file folders" (emphasis yours).

In this regard, I offer the following comments.

First, as you are aware, an agency is not required to create a record in response to a
request. Therefore, if for instance, there is no list of "summonses awaiting trial", the Village
would not be required to prepare a list on your behalf. Similarly, if there is no record
containing a figure reflective of a total number of summonses awaiting trial, the Village would
not be required to tabulate or prepare a total on your behalf.

Second, however, I believe that you have the right to review the summonses in
question, assuming that they are kept in file folders as you described, for the purpose of
preparing your own total or analysis. From my perspective, due to the nature of the records
in question, they would be available under the Freedom of Information Law.

Third, if the records are kept in file folders in the manner that you suggested, I believe
that a request to review the summonses in the folders would "reasonably describe" the
records as required by §89(3) of the Freedom of Information Law. As you may be aware, 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.

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. In Ruberti,
Girvin & Ferlazzo v. Division of State Police [218 AD2d 494, 641 NYS2d 411 (1996)], one
element of the decision pertained to a request for a certain group of personnel records, and
the agency argued that it was not required to search its files those requested "because such
records do not exist in a 'central file' and, further, that FOIL does not require that it review
every litigation or personnel file in search of such information" (id., 415). Nevertheless, citing
Konigsberg, the court determined that:

"Although the record before this court contains conflicting
proof regarding the nature of the files actually maintained by
respondent in this regard, an agency seeking to avoid
disclosure cannot, as respondent essentially has done here,
evade the broad disclosure provisions FOIL by merely
asserting that compliance could potentially require the review
of hundreds of records" (id.).

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Hon. Marie Fuesy, Clerk
Grace DiCuirci