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October 21, 1999

 

E-Mail

TO: Pamela Steigman <steigma@banet.net>

FROM: Robert J. Freeman, Executive Director

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. Steigman:

As you are aware, I have received your letter of September 7 concerning difficulties
in your attempts to obtain records from the City of Tonawanda School District. In this
regard, I offer the following comments.

First, I point out that the Freedom of Information Law pertains to existing records,
and that §89(3) of that statute states in part that an agency is not required to create a record
in response to a request. Therefore, insofar as the records of your interest do not exist, the
Freedom of Information Law would not apply.

Second, in a related vein, you referred to several specific reports and other records.
It is possible that the reports were denied or that you were informed that the did not exist
because the specific names that you accorded to the reports may be different from the names
or titles used by the District. For instance, you requested the "Strategic Planning" report.
While there may be a report dealing with the strategic planning, it may be characterized
differently by the District. In the future, rather than seeking to identify a particular document
of your interest, it is suggested that you provide information sufficient to "reasonably
describe" the records sought as required by §89(3) of the Freedom of Information Law.
Under that standard, an applicant is not required to identify a record with particularity; he or
she is merely required to provide sufficient detail to enable agency staff to locate the records
sought. Similarly, you requested a "budget for Central School." I would conjecture that
there is not a separate budget for each school within the District. It would likely be more
effective to request the District's budget.

Third, the Freedom of Information Law provides direction concerning the time and
manner in which agencies must respond to requests and appeals. 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)].

When an agency indicates that it does not maintain or cannot locate a record, an
applicant for the record may seek a certification to that effect. Section 89(3) of the Freedom
of Information Law provides in part that, in such a situation, on request, an agency "shall
certify that it does not have possession of such record or that such record cannot be found
after diligent search." If you consider it worthwhile to do so, you could seek such a
certification.

I point out that in Key v. Hynes [613 NYS 2d 926, 205 AD 2d 779 (1994)], it was
found that a court could not validly accept conclusory allegations as a substitute for proof that
an agency could not locate a record after having made a "diligent search". However, in
another decision, such an allegation was found to be sufficient when "the employee who
conducted the actual search for the documents in question submitted an affidavit which
provided an adequate basis upon which to conclude that a 'diligent search' for the documents
had been made" [Thomas v. Records Access Officer, 613 NYS 2d 929, 205 AD 2d 786
(1994)].

Lastly, you indicated that the District denied a request for a tape recording of a
meeting because the tape is the personal property of the clerk of the Board. Assuming that
the clerk used a tape recorder in the performance of his or her duties or used the tape
recording as a means of ensuring the accuracy of minutes, I believe that the tape recording
would be a District record that falls withing the coverage of the Freedom of Information law.
That statute pertains to agency records and defines the term "record" expansively to include:

"any information kept, held, filed, produced, reproduced by,
with or for an agency or the state legislature, in any physical
form whatsoever including, but not limited to, reports,
statements, examinations, memoranda, opinions, folders, files,
books, manuals, pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer tapes or discs,
rules, regulations or codes."

The Court of Appeals, the State's highest court, has construed the definition as
broadly as its specific language suggests. The first such decision that dealt squarely with the
scope of the term "record" involved documents pertaining to a lottery sponsored by a fire
department. Although the agency contended that the documents did not pertain to the
performance of its official duties, i.e., fighting fires, but rather to a "nongovernmental"
activity, the Court rejected the claim of a "governmental versus nongovernmental dichotomy"
[see Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581 (1980)] and found
that the documents constituted "records" subject to rights of access granted by the Law.
Moreover, the Court determined that:

"The statutory definition of 'record' makes nothing turn on the
purpose for which it relates. This conclusion accords with the
spirit as well as the letter of the statute. For not only are the
expanding boundaries of governmental activity increasingly
difficult to draw, but in perception, if not in actuality, there is
bound to be considerable crossover between governmental
and nongovernmental activities, especially where both are
carried on by the same person or persons" (id.).

In another decision rendered by the Court of Appeals, the Court focused on an agency
claim that it could "engage in unilateral prescreening of those documents which it deems to
be outside of the scope of FOIL" and found that such activity "would be inconsistent with the
process set forth in the statute" [Capital Newspapers v. Whalen, 69 NY 2d 246, 253 (1987)].
The Court determined that:

"...the procedure permitting an unreviewable prescreening of
documents - which respondents urge us to engraft on the
statute - could be used by an uncooperative and obdurate
public official or agency to block an entirely legitimate
request. There would be no way to prevent a custodian of
records from removing a public record from FOIL's reach by
simply labeling it 'purely private.' Such a construction, which
would thwart the entire objective of FOIL by creating an easy
means of avoiding compliance, should be rejected" (id., 254).

Further, in a case involving notes taken by the Secretary to the Board of Regents that
he characterized as "personal" in conjunction with a contention that he took notes in part "as
a private person making personal notes of observations...in the course of" meetings. In that
decision, the court cited the definition of "record" and determined that the notes did not
consist of personal property but rather were records subject to rights conferred by the
Freedom of Information Law [Warder v. Board of Regents, 410 NYS 2d 742, 743 (1978)].

In short, even if the clerk used a personal tape recorder or tape, based upon the
preceding commentary, I believe that the tape recording is a District record that must be
disclosed to the extent required by the Freedom of Information Law.

I hope that I have been of assistance.

RJF:jm