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December 21, 1998

Mr. Stephen Houston
93-A-6651
Green Haven Correctional Facility
665 State Route 216/Drawer B
Stormville, NY 12582-0010

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. Houston:

I have received your letter of November 11, which reached this office on November 19. You
have sought assistance in relation to a request for records made to the Office of the Queens County
District Attorney.

In the correspondence attached to your letter, you referred to a contention by Andrew L.
Zwerling, Executive Assistant to the District Attorney, that your appeal was late. It is unclear
whether the reference to an appeal involves an appeal relating to your conviction, or an appeal made
under the Freedom of Information Law.

If the appeal relates to your conviction, I note that it has been held that a failure to respond
in a timely manner to a request made under the Freedom of Information Law is irrelevant to the
validity of a determination made in a separate proceeding [see Brusco v. NYS Division of Housing
and Community Renewal, 170 AD2d 796, appeal dismissed, 77 NY2d 939 (1991)].

On the other hand, if your appeal relates to your Freedom of Information Law requests, as
I understand the situation, you requested records from the Office of the District Attorney in 1996,
at which time you were informed that a diligent search had been made for the records, but that they
could not be found. A second request for the same records was made earlier this year, and you were
informed on August 12 that a search was being made and that you would be informed of the status
of the request within a month. On September 24, a second letter was sent to you indicating that a
search for the records continued and that you would be informed of the result within thirty days. It
was apparently then that you appealed and thereafter received Mr. Zwerling's response that the appeal
was untimely.

If your original request resulted in a denial of access to records that had been found, pursuant
to §89(4)(a) of the Freedom of Information Law, you would have had thirty days from the denial to
appeal. However, since the request was neither granted nor denied, but rather involved an assertion
that the records could not be found, I know of nothing in the Freedom of Information Law or judicial
interpretation that would preclude you from seeking the records a second time in the hope that they
might now be located.

If my conclusion is accurate, it appears that an appeal would have been appropriate. In a case
that may be similar in some respects to your experience, it was found that:

"The acknowledgement letters in this proceeding neither granted nor
denied petitioner's request nor approximated a determination date.
Rather, the letters were open ended as to time as they stated, ‘that a
period of time would be required to ascertain whether such documents
do exist, and if they did, whether they qualify for inspection.

"This court finds that respondent's actions and/or inactions placed
petitioner in a "Catch 22" position. The petitioner, relying on the
respondent's representation, anticipated a determination to her
request...this court finds that this petitioner should not be penalized
for respondent's failure to comply with Public Officers Law §89 (3),
especially when petitioner was advised by respondent that a decision
concerning her application would be forthcoming.

It should also be noted that petitioner did not sit idle during this
period but rather made numerous efforts to obtain a decision from
respondent including the submission of a follow up letter to the
Records Access Officer and submission of various requests for said
records with the Department of Transportation" (Bernstein v. City of
New York, Supreme Court, Supreme Court, New York County,
November 7, 1990).

In Bernstein, the court determined that the applicant could have appealed and was "estopped from
asserting that this proceeding is improper due to petitioner's failure to appeal the denial of access to
records within 30 days to the agency head, as provided in Public Officers Law, §89(4)(a)."

Lastly, when an agency indicates that it does not maintain or cannot locate a record, an
applicant for the record may seek a certification to that effect. Section 89(3) of the Freedom of
Information Law provides in part that, in such a situation, on request, an agency "shall certify that
it does not have possession of such record or that such record cannot be found after diligent search."
If you consider it worthwhile to do so, you could seek such a certification.

I point out that in Key v. Hynes [613 NYS 2d 926, 205 AD 2d 779 (1994)], it was found that
a court could not validly accept conclusory allegations as a substitute for proof that an agency could
not locate a record after having made a "diligent search". However, in another decision, such an
allegation was found to be sufficient when "the employee who conducted the actual search for the
documents in question submitted an affidavit which provided an adequate basis upon which to
conclude that a 'diligent search' for the documents had been made" [Thomas v. Records Access
Officer, 613 NYS 2d 929, 205 AD 2d 786 (1994)].

From my perspective, the affirmation prepared by Assistant District Attorney Beder in relation
to your initial request was fully consistent with the direction provided in the decisions cited above.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Andrew L. Zwerling
Brian S.B. Lee