Ms. CherylAnn Armeno
Coalition for Junkyard Enforcement
P.O. Box 354
Fleischmanns, NY 12430
Hon. Donald E. Kearney
Village of Fleischmanns
P.O. Box I-3
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. Armeno and Mayor Kearney:
I have received your letters, which are respectively dated May 3 and May 25. In
short, Ms. Armeno has complained that Mayor Kearney "has made a regular practice to
advise FOIL requests that there will be a normal 30 day period to wait for any information",
and advisory opinions have been sent to other residents of the Village of Fleischmanns in
which it was suggested that a such a practice is inconsistent with the Freedom of Information
Law. In his letter, the Mayor sought an opinion concerning the propriety of an
acknowledgement of receipt of a request by the Department of Motor Vehicles (DMV)
indicating that "Normally, F.O.I.L. requests can be granted or denied within 30 days" of the
date of acknowledgement.
In my view, the situation relating to requests for records of the DMV cannot be
compared with or equated to that relating to requests for records of the Village of
Fleischmanns. Having conferred with DMV's Records Access Officer, that agency receives
thousands of requests per month characterized as "simple" and approximately 100 requests
per month characterized as "complex" or "complicated". While I could not locate current
figures regarding its population, it is my understanding that the entire population of the
Village of Fleischmanns is well under 1,000. Considering the volume of requests and the sizes
of the two agencies, again, I do not believe that they can effectively be compared for the
purpose of considering their time for responding to requests for records. What may be a
reasonable time to respond in one agency may not represent a reasonable time in another.
Typically, in a municipality similar in size to the Village of Fleischmanns, the Clerk or other
official can locate records within a matter of minutes.
I point out that the notion of reasonableness was stressed in opinions previously
rendered at the requests of other residents of the Village. Specifically, it was stated 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."
It was also suggested that:
"...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)].
In sum, due to its size and the number of requests received by DMV, its likely that a
delay in disclosure of records of approximately a month is reasonable. For the same reasons,
the size of the Village of Fleischmanns and the nature of the requests that have been described
to me, it seems that the Village, to comply with law, should be granting access to accessible
records within five business days of their receipt of the requests.
I hope that I have been of assistance.
Robert J. Freeman
cc: Kenneth Munnelly