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December 4, 1998

 

Ms. Linn Atkinson-Loveless
Attorney At Law
502 Carpenter Street
Greenport, NY 11944

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. Atkinson-Loveless:

I have received your letter of October 30 in which you questioned the propriety of a
policy adopted by several towns in relation to the requirements of the Freedom of Information
Law. Specifically, you wrote that the "policy of certain Assessors' offices limits the number
of property card requests to four or five per person per day."

In this regard, I offer the following comments.

First, by way of background, §89(1)(b)(iii) of the Freedom of Information Law
requires the Committee on Open Government to promulgate regulations concerning the
procedural implementation of the Law (see 21 NYCRR Part 1401). In turn, §87(1) requires
agencies to adopt rules and regulations consistent with the Law and the Committee's
regulations.

Section 1401.2 of the regulations, provides in relevant part that:

"(a) The governing body of a public corporation and the head
of an executive agency or governing body of other agencies
shall be responsible for insuring compliance with the
regulations herein, and shall designate one or more persons as
records access officer by name or by specific job title and
business address, who shall have the duty of coordinating
agency response to public requests for access to records. The
designation of one or more records access officers shall not be
construed to prohibit officials who have in the past been
authorized to make records or information available to the
public from continuing to do so..."

Section 1401.4 of the regulations, entitled "Hours for public inspection", states that:

"(a) Each agency shall accept requests for public access to
records and produce records during all hours they are
regularly open for business.

(b) In agencies which do not have daily regular business
hours, a written procedure shall be established by which a
person may arrange an appointment to inspect and copy
records. Such procedure shall include the name, position,
address and phone number of the party to be contacted for the
purpose of making an appointment."

Relevant to your inquiry and the foregoing is a decision rendered by the Appellate
Division, Second Department. Among the issues considered was the validity of a limitation
regarding the time permitted to inspect records established by a village pursuant to regulation.
The Court held that the village was required to enable the public to inspect records during its
regular business hours, stating that:

"...to the extent that Regulation 6 has been interpreted as
permitting the Village Clerk to limit the hours during which
public documents can be inspected to a period of time less
than the business hours of the Clerk's office, it is violative of
the Freedom of Information Law..." [Murtha v. Leonard, 620
NYS 2d 101 (1994), 210 AD 2d 411].

In short, based on the decision of the Appellate Division, an agency must permit the
inspection of records during the entirety of its regular business hours.

Second, 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, and if they are readily
retrievable, there may be no basis for a lengthy delay in disclosure or a limitation on the
number of records inspected. 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)].

In sum, unless there is a reasonable basis for limiting the number of cards made
available at a given time, the policy that you described would, in my opinion, be inconsistent
with the language of the Freedom of Information Law and its judicial interpretation.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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