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March 28, 2000

FOIL-AO-12012

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

As you are aware, I have received your letter of February 16 and the materials
attached to it. In short, it is your view that you have not received an appropriate response to a
request for records from the State Education Department.

In this regard, having reviewed the correspondence, I offer the following comments.

First, it is emphasized that the Freedom of Information Law pertains to existing
records and that §89(3) of that statute provides in relevant part that an agency is not required
to create a record in response to a request. As I understand your correspondence, in several
instances, you might have sought records or information that may not exist. For instance,
you requested "lists of documents" transmitted between agencies. If no such lists exist, the
Department would not be obliged to prepare lists on your behalf. You also sought "a
description of the evaluation process." Again, if no such record exists, the Department would
not be required to prepare a description on your behalf.

In a related vein, you requested "documentation utilized by SED to evaluate" certain
needs, actions and functions. From my perspective, that kind of request might not be a
request for records as envisioned by the Freedom of Information Law, for a response might
involve making a series of judgments based on opinions, some of which would be subjective,
mental impressions, the strength of one's memory, and perhaps legal research. For instance,
in a situation in which an individual sought provisions of law that might have been
"applicable" in governing certain activity, it was advised that the request was inappropriate.
Specifically, the request involved "copies of the applicable provisions and pages of the Civil
Service Law and applicable rules promulgated by the Department of Civil Service which
govern the creation and appointment of management confidential positions" (emphasis
added). In response, it was suggested that:

"...the foregoing is not a request for records. In essence, it is a
request for an interpretation of law requiring a judgment. Any
number of provisions of law might be "applicable", and a
disclosure of some of them, based on one's knowledge, may be
incomplete due to an absence of expertise regarding the content
and interpretation of each such law. Two people, even or
perhaps especially two attorneys, might differ as to the
applicability of a given provision of law. In contrast, if a
request is made, for example, for "section 209 of the Civil
Service Law", no interpretation or judgment is necessary, for
sections of law appear numerically and can readily be
identified. That kind of request, in my opinion, would involve
a portion of a record that must be disclosed. Again, a request
for laws that might be "applicable" is not, in my view, a
request for a record as envisioned by the Freedom of
Information Law."

In like manner, ascertaining which records were "used to evaluate" might involve an
attempt to render a judgment regarding the use, utility, accuracy or value of records. As in
the case of locating "applicable law", equally reasonable people, even those within the same
agency, may reach different conclusions regarding which records may have been used or
which tend to support certain needs, actions or functions.

Further, there may be a variety of records from an array of sources used in and outside
the scope of one's governmental duties that might have been used, including curricular
materials used in undergraduate, graduate or post graduate studies, library materials,
magazine articles, documentaries, films (i.e., for training), professional journals and similar
documentation read or seen over the course of years. Those kinds of materials may
contribute to one's breadth of knowledge and may, consciously or otherwise, tend to support
a position on a given subject. However, identifying or recalling those kinds of materials that
may have resulted in the acquisition of knowledge and which even may tend to support a
statement or position would, in my opinion, frequently involve an impossibility. Moreover,
for purposes of the Freedom of Information Law, a request for such materials might not meet
the standard of "reasonably describing" the records sought, for such a request would not
enable the Department to locate and identify the records in the manner envisioned by that
statute [see Konigsberg v. Coughlin, 68 NY2d 245 (1986)].

Second, insofar as a request for records is consistent with the Freedom of Information
Law, that statute provides direction concerning the time and manner in which agencies must
respond to a request. 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 hope that the foregoing serves to enhance your understanding of the Freedom of
Information Law and that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Leslie Templeman