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March 1, 2000

FOIL-AO-11975

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 February 1, as well as a variety of materials relating to
it. You have sought an advisory opinion concerning the implementation of the Freedom of
Information Law by Westchester County.

By way of brief background, in a letter of September 7 addressed to the County
Executive, your office, under your signature, requested "all materials written or electronic, in
possession of Westchester County" relating to a proposed "land swap" involving parcels
located in the Town of Greenburgh and the City of New Rochelle, and a separate request was
made on September 9. Another letter was sent to the County Executive on September 21
indicating that there had been no reply and seeking a prompt reply. The initial written
response to the requests was made by the County Executive's records access officer, Ms.
Susan Tolchin, on November 23. She wrote that she was disclosing all of the materials
falling within the scope of the requests "in the possession of the Office of the County
Executive."

Because you believed that the response was both late and incomplete in that it dealt
only with records kept in the Office of the County Executive, Ms. Maritza F. Bolanos,
appealed on December 28. The County Attorney, Mr. Alan D. Scheinkman, responded to the
appeal on January 13 and dismissed it, stating that:

"While both of Mr. Parker's letters were issued on the official
letterhead of Assemblyman Brodsky, neither identified Mr.
Parker's position within Assemblyman Brodsky's office.
Neither letter represented that the requests were being made on
behalf of Assemblyman Brodsky. Ms. Tolchin's letter, dated
November 23, 1999, treated Mr. Parker as the person who was
requesting the records and made no reference to Mr. Brodsky
in her response. This treatment was appropriate given the lack
of any express representation by Mr. Parker that the request
was being made on behalf of Mr. Brodsky or any other third
person.

"Section 89 of the Public Officers Law (subdivision 4[a]) and
Section 437.81 of the Laws of Westchester County authorize
an appeal to the undersigned by ‘a person denied access to a
record'. The record indicates that it was Mr. Parker who
requested the access to records, that it was Mr. Parker to whom
Ms. Tolchin sent ‘all the material in the possession of the
Office of the County Executive on the subject as of this date',
and that the only person who could claim that records had been
denied him was Mr. Parker."

Mr. Scheinkman also wrote that the appeal was time barred and that "[t]ime to appeal
was triggered" when the County Executive's office did not respond within five days of Mr.
Parker's requests. He added that even if that contention was not offered, the appeal was
untimely, for the response by Ms. Tolchin was rendered on November 23, but the appeal was
not made until December 28, a time beyond the thirty day time to appeal prescribed by
§89(4)(a) of the Freedom of Information Law.

From my perspective, the County has responded in a manner inconsistent with the
spirit if not the letter of the Freedom of Information Law. In this regard, I offer the following
comments.

First, although the correspondence sent to the County might have been prepared by
different persons, and although it may not have been explicitly stated that they wrote on
behalf of Assemblyman Brodsky, it was, in my view, clearly implicit. Each item of
correspondence appeared on the letterhead of the Assemblyman, and the language of each
indicates that each was made as his representative. In the initial letter of September 7, Mr.
Parker closed by stating that "[w]e would appreciate a response..."; the beginning of the letter
of September 9 states that "[T]his letter supplements our September 7, 1999 request"; and in
the letter of September 21, he wrote that "[o]n September 7 and September 9, 1999 this office
requested all materials..." (emphasis mine). The words underlined in my opinion clearly
indicate that the requests were made on behalf of the office of Assemblyman Brodsky. I
believe that the rejection of an appeal because it was signed not by you, but rather by the
Assemblyman's Deputy Counsel, is artificial and reflects a refusal to recognize the reality of
the situation, that each item of correspondence should reasonably have been deemed to have
been prepared by representatives of a single office acting on behalf of Assemblyman
Brodsky.

Second, as you aware, it has been advised by this office and confirmed judicially that
an agency's failure to respond to a request within five business days of its receipt of the
request constitutes a constructive denial of the request. Pursuant to §89(4)(a) of the Freedom
of Information Law, when a request is denied, the applicant may appeal within thirty days.
While it has been held that an agency's failure to respond to a request within five business
days provides an applicant with the right to appeal [see De Corse v. City of Buffalo, 239
AD2d 949 (1997)], there is no case suggesting that the time to appeal begins on the sixth
business day and expires thirty days thereafter. Morever, the ability to appeal a constructive
denial of a request is based on an agency's failure to comply with law, but the language of
the Freedom of Information Law concerning an agency's obligation to respond to requests
and an applicant's right to appeal a denial of a request is predicated on procedural compliance
by the agency.

Pursuant to §89(3) of the Freedom of Information Law, in response to a written
request for a records, an agency has five business days to "...make such record available to
the person requesting it, deny such request in writing or furnish a written acknowledgment of
the receipt of such request..." Section 89(4)(a) states that person denied access to a record
"may within thirty days appeal in writing such denial..." "Such denial" in my view refers to
the denial in writing required by §89(3), and I believe that the thirty day time to appeal is
triggered upon receipt of a written denial, or, as indicated earlier, when an agency has failed
to carry out its duty to respond within five business days.

Third, with respect to the appeal of December 28 following Ms. Tolchin's response of
November 23, you wrote that you did not receive her letter until December 3. If that is so,
even in consideration of the contention offered by the County Attorney, the appeal would
have been made well within thirty days.

Lastly, notwithstanding the rules and regulations adopted by Westchester County to
implement the Freedom of Information Law, in view of the language of the request, i.e. "all
materials...in possession of Westchester County" concerning a certain subject, I believe that
the County Executive's records access officer should have informed you, certainly well in
advance of November 23, more than two months after receipt of your requests, that her
response would be limited to the disclosure of records in the possession of the County
Executive, and that requests for records kept by other County agencies should be made to
their records access officers. Alternatively, to assist you in a manner consistent with the
Freedom of Information Law, she could have acknowledged the receipt of your request
within five business days and forwarded copies of your request to the agencies in County
government that would likely possess the records of your interest.

As you may be aware, §87(1) of the Freedom of Information Law requires that the
governing body of a public corporation, such as a county, promulgate procedural rules and
regulations designed to implement that statute. Those rules and regulations must be
consistent with the statute and the regulations promulgated by the Committee on Open
Government (21 NYCRR Part 1401). One aspect of the Committee's regulations involves
the requirement that each agency designate one or more persons as "records access officer."
In many units of local government, including several counties, one person is so designated,
and he or she has the duty of coordinating an agency's response to requests. In Westchester
County, it is my understanding that each County department has its own records access
officer. That likely accounts for Ms. Tolchin's response that she would deal only with
records in possession of the County Executive. Nevertheless, to give effect to the spirit of the
law, I believe that she should have engaged in the kinds of steps suggested in the preceding
paragraph.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Andrew Spano
Alan D. Scheinkman
Susan Tolchin