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December 28, 1999

FOIL-AO-11865

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

I have received your letter of November 24, as well as the correspondence relating to
it. You have sought my views concerning the "inappropriate handling" of a request for
records made to the West Islip School District.

By way of background, on October 27, you requested from the District standard
operating procedures applicable to school bus drivers, safety instructions, disciplinary
guidelines and similar records, as well as the license and driving records pertaining to a
particular bus driver. You indicated that "it took the school district 25 days to respond to
[your] request" and that District Officials claimed that "it will take a total of 43 days from the
time of [your] first request to gather the information."

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..."

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)].

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 state's highest court 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 NY 2d
575, 579 (1980)].

In short, insofar as records are 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).

Second, from my perspective, the records sought are, in most instances, clearly
available. 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.

Records in the nature of standard operating procedures, instructions to staff , an
agency's rules and similar materials fall within the coverage of §87(2)(g), which specifies
that they must be disclosed. The cited provision states that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits
performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While
inter-agency or intra-agency materials may be withheld, portions of such materials consisting
of statistical or factual information, instructions to staff that affect the public, final agency
policy or determinations or external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently, those portions of inter-agency or
intra-agency materials that are reflective of opinion, advice, recommendation and the like
could in my view be withheld.

With respect to the driving record, I believe that most of the items sought would be
available, irrespective of whether the driver is an employee of the District or a private bus
company. I note that Article 19-A of the Vehicle and Traffic Law, entitled "Special
Requirements for Bus Drivers", includes provisions that relate to school bus drivers, their
disqualification, and the obligation of a school district to obtain their driving records. In
terms of access to records, pertinent is §87(2)(b), which permits an agency to withhold
records to the extent that disclosure would constitute "an unwarranted invasion of personal
privacy."

It is emphasized in this regard that the courts have found that, as a general rule,
records that are relevant to the performance of the official duties of a public officer or
employee are available, for disclosure in such instances would result in a permissible rather
than an unwarranted invasion of personal privacy [see e.g., Farrell v. Village Board of
Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977),
aff'd 45 NY 2d 954 (1978); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva
Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25,
1981; Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhida v. City of Albany,
147 AD 2d 236 (1989); Scaccia v. NYS Division of State Police, 530 NYS 2d 309, 138 AD
2d 50 (1988); Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ,
Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d 562 (1986)]. Conversely, to the
extent that items relating to public officers or employees are irrelevant to the performance of
their official duties, it has been found that disclosure would indeed constitute an unwarranted
invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov.
22, 1977, dealing with membership in a union; Minerva v. Village of Valley Stream, Sup.
Ct., Nassau Cty., May 20, 1981, involving the back of a check payable to a municipal
attorney that could indicate how that person spends his/her money; Selig v. Sielaff, 200 AD
2d 298 (1994), concerning disclosure of social security numbers].

In my view, due to the provisions applicable to all school bus drivers, the extent to
which records must be disclosed would be essentially the same, whether the drivers are
employed privately or by the District. Further, in conjunction with the previous commentary,
I believe that a driver's driving record, including violations, reference to accidents and
similar details relevant to the performance of his or her duties must be disclosed; contrarily,
those items that are irrelevant to the performance of one's duties, such as a social security
number, home address and date of birth, could be deleted.

In an effort to enhance compliance with and understanding of applicable law, copies
of this opinion will be forwarded to District officials.

I hope that I have been of assistance.

Sincerely,


Robert J. Freeman
Executive Director

RJF:tt

cc: Thomas E. Boedicker
Jeanne Koeper
Gale Winsper