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August 18, 1999

Mr. Peter W. Sluys
Editor-in-Chief
Rockland County Times
14 East Central Ave.
P.O. Box 510
Pearl River, NY 10965

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. Sluys:

I have received your letters of July 20 and August 4. Please understand that, in
fairness, responses to requests for written advisory opinions are generally prepared in the
order of receipt. Since this office receives nearly eight hundred requests for written opinions
annually, and because the staff is small (myself and two secretarial assistants), the time for
responding may be, as in this instance, approximately a month from receipt.

In brief, you described a series of difficulties in gaining access to records of the Town
of Haverstraw. In this regard, I offer the following comments.

First, 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..."

While 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, vacation schedules, workload 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.

Second, it has been advised by this office and held judicially that an agency cannot
limit the ability of the public to inspect records to a period less than its regular business hours.
By way of background, §89 (1)(b)(iii) of the Freedom of Information Law requires the
Committee on Open Government to promulgate regulations concerning the procedural
implementation of the Law (see 21 NYCRR Part 1401). In turn, §87 (1) requires agencies
to adopt rules and regulations consistent with the Law and the Committee's regulations.

Section 1401.2 of the regulations, provides in relevant part that:

"(a) The governing body of a public corporation and the head of an
executive agency or governing body of other agencies shall be
responsible for insuring compliance with the regulations herein, and
shall designate one or more persons as records access officer by name
or by specific job title and business address, who shall have the duty
of coordinating agency response to public requests for access to
records. The designation of one or more records access officers shall
not be construed to prohibit officials who have in the past been
authorized to make records or information available to the public from
continuing to do so..."

Section 1401.4 of the regulations, entitled "Hours for public inspection", states that:

"(a) Each agency shall accept requests for public access to
records and produce records during all hours they are
regularly open for business."

Relevant to the matter is a decision rendered by the Appellate Division, Second
Department. Among the issues was the validity of a limitation regarding the time permitted
to inspect records established by a village pursuant to regulation. The Court held that the
village was required to enable the public to inspect records during its regular business hours,
stating in part that:

"...to the extent that Regulation 6 has been interpreted as
permitting the Village Clerk to limit the hours during which
public documents can be inspected to a period of time less
than the business hours of the Clerk's office, it is violative of
the Freedom of Information Law..." [Murtha v. Leonard, 620
NYS 2e 101 (1994), 210 AD 2d 411].

Based on the foregoing, the Town, in my view, cannot limit your ability to inspect
records to a period less than its regular business hours.

I do not believe, however, that a member of the public may designate the date or dates
on which he or she seeks to review records. If, for instance, records will be in use by staff
on a particular date or during a particular period of time, an agency would not, in my view,
be required to alter its schedule or work plan. In that instance, the agency could offer a series
of dates to the person seeking to inspect the records in order that he or she could choose a
date suitable to both parties. Similarly, if a request involves a variety of items, while the
applicant may ask that certain records be made available sooner than others, I do not believe
that he or she can require an agency to make records available in a certain order. Again, the
kinds of factors mentioned earlier in conjunction with the time needed to respond to requests
would be pertinent.

Third, when a record is available in its entirely under the Freedom of Information Law,
any person has the right to inspect the record at no charge. However, there are often
situations in which some aspects of a record, but not the entire record, may properly be
withheld in accordance with the ground for denial appearing in §87(2). In that event, I do not
believe that an applicant would have the right to inspect the record. In order to obtain the
accessible information, upon payment of the established fee, I believe that the agency would
be obliged to disclose those portions of the records after having made appropriate deletions
from a copy of the record.

For example, I do not believe that you would have the right to inspect W-2 forms, for
they include information that you have no right to see. Based upon the direction provided by
the Freedom of Information Law and the courts, insofar as W-2 forms pertaining to public
employees indicate gross wages, they must be disclosed. However, pursuant to §87 (2)(b) of
the Freedom of Information Law concerning the ability to protect against unwarranted
invasions of personal privacy, I believe that portions of W-2 forms could be withheld, such
as social security numbers, home addresses and net pay, for those items are largely irrelevant
to the performance of one's duties. That conclusion has been reached judicially, and the court
cited an advisory opinion rendered by this office in so holding (Day v. Town of Milton,
Supreme Court, Saratoga County, April 27, 1992). In short, while portions of the forms
containing names and gross wages must be disclosed, the town could seek payment of the
requisite fee for photocopies, which would be made available after the deletion of certain
details (see Van Ness v. Center for Animal Care and Control and the New York City
Department of Health, Supreme Court, New York County, January 28, 1999).

Lastly, you questioned the ability of a municipality to charge fees for copies of local
laws before the laws are passed. Although copies of proposed local laws frequently are made
available free of charge, I know of no statute that would preclude an agency from charging
its fee established under the Freedom of Information Law.

 

 

I hope that the foregoing serves to clarify your understanding of the Freedom of
Information Law and that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Sean D. Purdy