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April 7, 1999

 

Ms. Lindy Hatzmann
933 2nd Street
Peekskill, NY 10566

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. Hatzmann:

I have received your letter of March 21 and the materials attached to it.

In brief, you sought records from the City of Peekskill concerning the City's
application for a grant awarded by the United States Department of Justice. You indicated
that a condition required to gain the award involved holding a public hearing, which occurred
on February 8. In an effort to be prepared for the hearing and to offer intelligent comments,
you and others requested copies of the grant application. Despite those requests, you wrote
that a copy of the application was made available for your inspection only after the hearing
had been held. When you sought a copy, you encountered an additional delay in disclosure.
A copy of the grant application was finally made available to you on March 10. However,
your request for "copies of memos corresponding to that application and approval" were
withheld pursuant to §87(2)(g) of the Freedom of Information Law.

You have sought my views on the matter. In this regard, I offer the following
remarks.

First, as you may be aware, 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..."

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)].

I note that although 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)].

Further, in my opinion, if, as a matter of practice or policy, an agency acknowledges
the receipt of requests and indicates in every instance that it will determine to grant or deny
access to records within a particular period following the date of acknowledgement, such a
practice or policy would be contrary to the thrust of the Freedom of Information Law. 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 delay beyond five business days, 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. In a case in which it was found that an agency's "actions
demonstrate an utter disregard for compliance set by FOIL", it was held that "[t]he records
finally produced were not so voluminous as to justify any extension of time, much less an
extension beyond that allowed by statute, or no response to appeals at all" (Inner City
Press/Community on the Move, Inc. v. New York City Department of Housing Preservation
and Development, Supreme Court, New York County, November 9, 1993).

Second, as a general matter, the Freedom of Information Law 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.

Although §87(2)(g) of the Freedom of Information Law permits the withholding of
inter-agency or intra-agency materials depending upon the contents of those materials, I do
not believe that §87(2)(g) could be cited to withhold communications between the City of
Peekskill and a federal agency. Section 86(3) of the Freedom of Information Law defines
"agency" to include:

"any state or municipal department, board, bureau, division,
commission, committee, public authority, public corporation,
council, office or other governmental entity performing a
governmental or proprietary function for the state or any one
or more municipalities thereof, except the judiciary or the state
legislature."

The language quoted above indicates that an "agency" is an entity of state or local
government in New York. Since the definition of "agency" does not include a federal agency,
§87(2)(g) could not be cited as a means of withholding communications with a federal entity.
I note that there is case law involving the assertion of §87(2)(g) in relation to communications
between agencies and entities other than New York state or municipal governments. In those
instances, it was held that the assertion of §87(2)(g) was erroneous [see e.g., Community
Board 7 of Borough of Manhattan v. Schaeffer, 570 NYS 2d 769; affirmed, 83 AD2d 422;
reversed on other grounds, 84 NY2d 148 (1994); also Leeds v. Burns, 613 NYS 2d 46, 205
AD2d 540 (1994)].

Insofar as the memos or other documentation involve communications between the
City and the federal government, §87(2)(g) would not, in my view, authorize a denial of
access. Insofar as the request involves internal memoranda transmitted between or among
City officials, as suggested earlier, the contents of those materials would serve as the basis for
determining rights of access. The cited provision permits an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits
performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While
inter-agency or intra-agency materials may be withheld, portions of such materials consisting
of statistical or factual information, instructions to staff that affect the public, final agency
policy or determinations or external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently, those portions of inter-agency or
intra-agency materials that are reflective of opinion, advice, recommendation and the like
could in my view be withheld.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Joseph A. Stargiotti