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May 4, 1999

 

Ms. Susan Ferraro
P.O. Box 713
Fleischmanns, NY 12430

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, unless otherwise indicated.

Dear Ms. Ferraro:

I have received your letter of April 5, as well as the correspondence attached to it.
You have sought an advisory opinion concerning a request made under the Freedom of
Information Law to the Village of Fleischmanns.

By way of background, you wrote to the Village Clerk on March 19 and sought a
variety of information relating to a Village election conducted on the preceding day. The
receipt of the request was acknowledged on March 25, and the Mayor indicated at that time
that "[n]ormally, FOIL requests can be granted or denied within 30 days of the above date."
On April 1, you were informed that some of the records sought would be made available upon
payment of a fee for copies; that others did not exist; that some would be available but "will
take some time to compile"; and that in other cases, the village would engage in "researching"
requests to determine rights of access.

In this regard, I offer the following comments.

First, it is emphasized at the outset that the Freedom of Information Law pertains to
existing records, and that §89(3) of that statute provides in part that an agency is not required
to create a record in response to a request. Several aspects of your request involve "lists" of
various items. If no lists containing the information sought exist, the Village would not be
obliged to prepare new records on your behalf. In the future, unless it is clear that a list has
been prepared, it is suggested that you request existing records, i.e., records identifying voters
who were challenged.

In a related vein, in order to avoid unnecessary delays in disclosure, when requesting
records, I recommend that you specify whether you want to inspect them or have copies. An
agency cannot charge for the inspection of accessible records. If you want copies, you might
offer to pay a fee of up to a certain amount and to be informed prior to making copies only
if the total exceeds that amount.

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. I point out, however, that other statutes may be pertinent
with respect to the records that you requested, and that §89(6) of the Freedom of Information
Law states that if records are available under some other provision of law, they remain
available, notwithstanding an apparent ability to deny access under the Freedom of
Information Law.

By means of example, there are many instances in which home addresses may be
withheld under §87(2)(b), which permits an agency to deny access to records to the extent
that disclosure would constitute "an unwarranted invasion of personal privacy." Nevertheless,
in a statute dealing with absentee ballot applications, Election Law, §8-402, subdivision (7)
states that:

"The board shall keep a record of applications for absentee
ballots as they are received, showing the names and residences
of the applicants, and their party enrollment in the case of
primary elections, and, as soon as practicable shall, when
requested, give to the chairman of each political party or
independent body in the county, and shall make available for
inspection to any qualified voter upon request, a complete list
of all applicants to whom absentee voters' ballots have been
delivered or mailed, containing their names and places of
residence as they appear on the registration record, including
the election district and ward, if any..."

Similarly, §3-220(1) of the Election Law states in part that: "All registration records,
certificates, lists and inventories referred to in, or required by, this chapter shall be public
records..."

Based on the foregoing, it is clear in my view that absentee ballot applications, for
instance, and voter registration lists identifying those who voted, should be readily available.

Lastly, 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..."

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.
Having reviewed other requests involving the Village of Fleischmanns, it appears that every
request, irrespective of its nature, is acknowledged with the same statement. 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).

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Donald E. Kearney, Mayor
Lorraine De Marfio, Village Clerk