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September 28, 1998

 

Mr. William V. Camfield
Camfield-Purcell Water Works Inc.
263 Verbeck Avenue
Schaghticoke, NY 12154

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. Camfield:

I have received a variety of correspondence from you relating to requests for
information directed to the Town of Stillwater and a request for a determination by the New
York State Department of Health.

In this regard, it is emphasized at the outset that the jurisdiction of the Committee on
Open Government is limited to matters involving rights of access to government records
under the Freedom of Information Law. Consequently, other than contacting the person with
whom you communicated at the Department of Health to ascertain the status of your request
for a determination, the matter is beyond the jurisdiction of this office. Similarly, it is your
belief that monies may be owed to you by the Town of Stillwater, and you asked how you
may seek return of the money. That issue is unrelated to the functions of this office. To seek
general guidance on the subject, it is suggested that you might contact the Office of the State
Comptroller.

As the correspondence relates to the Freedom of Information Law, it appears that the
issue involves a delay in the disclosure of records by the Town. Here I point out that the
regulations promulgated by the Committee on Open Government (21 NYCRR Part 1401)
require that each agency designate one or more persons as "records access officer." The
records access officer, who in this instance is the Town Clerk, has the duty of coordinating
the Town's response to requests for records. It appears that the Clerk has attempted to do
so.

With respect to the delay, 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..."

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, §84 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)].

If a request is voluminous and a significant amount of time is needed to locate records
and review them to determine rights of access, a substantial delay, 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 any extended period of time.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Rose Petronis, Town Clerk