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June 29, 1999

 

Ms. Christine Brown
32 Kirkfield Drive
Rochester, NY 14612

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. Brown:

I have received your letter of May 27, as well as a variety of materials relating to the
efforts of yourself and others concerning a construction project in the Greece Central School
District.

One of the issues involves delays in the disclosure of records. In this regard, the
Freedom of Information Law provides direction pertaining to the time and manner in which
an agency must respond to requests. Specifically, §89(3) of the Freedom of Information Law
provides in relevant 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..."

It has been held that agency officials "did not conform to the mandates" of the
provision quoted above "when they did not...furnish a written acknowledgement of the receipt
of...requests along with a statement of the approximate date when action would be taken"
[Newton v. Police Department, 585 NYS2d 5, 8, 183 AD2d 621 (1992), emphasis added].

In a case that described an experience that may be somewhat similar to yours, the
court cited §89(3) of the Freedom of Information Law and wrote 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 agency "is 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)."

Based on the foregoing, it appears that some aspects of your request have been
constructively denied and that you may appeal the denial pursuant to §89(4)(a). 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 of the entity, or the person therefor designated
by such 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
reason for further denial, or provide access to the record
sought."

The second issue involves the contention by the District that certain requests involve
the analysis of information and the creation of new records. While I agree with that
contention in some instances, it does not appear to be applicable in others. By way of
background, as you are likely aware, the Freedom of Information Law pertains to existing
records, and §89(3) states in part that an agency is not required to create a record in response
to a request for information. Similarly, an agency is not required to provide "information"
in response to questions; its obligation is to provide access to existing records to the extent
required by law. Therefore, if, for instance, if a request is made for the "total cost" of a
certain function or project, and if the District does not maintain a record that contains a
"total", it would not be obliged to review its records and compile a series of figures to prepare
a total on behalf of an applicant. In one request made to the District, the applicant asked
whether "all schools, teachers, and all children have the textbooks they need to meet our
educational expectations." In my view, that kind of inquiry would not constitute a request
for records under the Freedom of Information Law.

In a request that you made, you sought "Documents containing the cost of renovation
thus far to the administrative floor and breakdown including but not limited to carpeting,
drywall, painting, windows, ceiling, lights, electric." The District's appeals officer wrote that
"[t]o obtain this information would require the district to analyze information, make the
necessary calculations and create a new record." In short, I disagree with that response. You
requested "documents"; you did not seek information in the nature of a total figure or attempt
to elicit information by raising a question. If indeed there are "documents" containing
information reflective of certain costs, the District would be required to disclose them; you
could prepare totals on your own initiative.

Part of the issue may relate the requirement imposed by §89(3) of the Freedom of
Information Law that an applicant must "reasonably describe" the records sought. I point out
that it has been held by the Court of Appeals, the State's highest court, that to deny a request
on the ground that it fails to reasonably describe the records, an agency must establish that
"the descriptions were insufficient for purposes of locating and identifying the documents
sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

The Court in Konigsberg found that the agency could not reject the request due to its
breadth and also stated that:

"respondents have failed to supply any proof whatsoever as to
the nature - or even the existence - of their indexing system:
whether the Department's files were indexed in a manner that
would enable the identification and location of documents in
their possession (cf. National Cable Tel. Assn. v Federal
Communications Commn., 479 F2d 183, 192 [Bazelon, J.]
[plausible claim of nonidentifiability under Federal Freedom of
Information Act, 5 USC section 552 (a) (3), may be presented
where agency's indexing system was such that 'the requested
documents could not be identified by retracing a path already
trodden. It would have required a wholly new enterprise,
potentially requiring a search of every file in the possession of
the agency'])" (id. at 250).

In my view, whether a request reasonably describes the records sought, as suggested by the
Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an
agency's filing or record-keeping system. In Konigsberg, it appears that the agency was able
to locate the records on the basis of an inmate's name and identification number.

While I am unfamiliar with the recordkeeping systems of the District, to the extent
that the records sought can be located with reasonable effort, I believe that the request would
have met the requirement of reasonably describing the records. If the construction project is
ongoing or recently completed, I would conjecture that one or more contractors were
engaged to perform certain tasks, i.e., painting, supplying and installing flooring or windows,
electrical work and the like. Assuming that District staff has the ability to locate records
reflective of those expenditures, while it would not be required to prepare a total, I believe
that it would be required to retrieve and disclose those records. Again, once in receipt of the
records you could perform your own analysis or compilations.

In sum, insofar as your requests involve "documents" and District staff has the
capacity to locate those records, staff, in my opinion, would be required to do so and disclose
them in accordance with rights of access conferred by the Freedom of Information Law.

In an effort to enhance compliance with and understanding of the Freedom of
Information Law, copies of this response will be forwarded to District officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Board of Education
Donald O. Nadolinski
Ruth Ranzenbach