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May 4, 2000

FOIL-AO-12084

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 March 23 and the correspondence attached to it. Having
received a response to a request for records from the Village of Lynbrook indicating that "the
Village Clerk is on vacation, and will respond to your FOIL request upon her return", you
asked that I "instruct the Village...of what they are to do with a FOIL request in the event that
someone is on vacation."

In this regard, first, the Committee on Open Government is authorized to provide
advice and opinions concerning the Freedom of Information Law; the Committee is not
empowered to compel an agency to grant or deny access to records.

Second, while I am unfamiliar with the nature of your request, the absence of the
Clerk or perhaps others need not in my view serve as a basis for delaying or denying access,
particularly if it has been established that a record is accessible under the law. I note by way
of background that §89(1) of the Freedom of Information Law requires the Committee on
Open Government to promulgate regulations concerning the procedural implementation of
that statute (21 NYCRR Part 1401). In turn, §87(1) requires the governing body of a public
corporation to adopt rules and regulations consistent those promulgated by the Committee
and with the Freedom of Information Law. Further, §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."

In short, I believe that the records access officer has the duty of coordinating responses to
requests.

Section 1401.2(b) of the regulations describes the duties of a records access officer
and states in part that:

"The records access Officer is responsible for assuring that
agency personnel...

(3) Upon locating the records, take one of the following
actions:
(i) make records promptly available for inspection; or
(ii) deny access to the records in whole or in part and explain
in writing the reasons therefor.
(4) Upon request for copies of records:
(i) make a copy available upon payment or offer to pay
established fees, if any; or
(ii) permit the requester to copy those records..."

Based on the foregoing, again, the records access officer must "coordinate" an
agency's response to requests. Therefore, I believe that when an official receives a request,
he or she, in accordance with the direction provided by the records access officer, must
respond in a manner consistent with the Freedom of Information Law or forward the request
to the records access officer.

Further, even if the request was complex and warranted an extension of time to
determine rights of access, the response in this instance, based on the language of the law,
was inadequate. Section 89(3) of the Freedom of Information Law provides in relevant 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..."

It has been held that agency officials "did not conform to the mandates" of the
provision quoted above "when they did not...furnish a written acknowledgement of the
receipt of...requests along with a statement of the approximate date when action would be
taken" [Newton v. Police Department, 585 NYS2d 5, 8, 183 AD2d 621 (1992), emphasis
added].

In an effort to enhance compliance with and understanding of the Freedom of
Information Law, copies of this opinion will be forwarded to Village officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Village Clerk
Theresa Palladino