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June 28, 2000

FOIL-AO-12180

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 May 18 in which you described difficulty in obtaining
records under the Freedom of Information Law as follows:

"When we seek to inspect and copy an application which has
been field with the municipality on behalf of a property owner,
or prospective developer of property, we are often advised by
the municipality that the application papers will not be made
available for inspection until the municipality has completed its
review of the application and (where no public hearing is
required for the application) the municipality has made its
determination with respect to the application.

"This procedure prevents us, or our clients, from being able to
learn the details of pending applications in sufficient time to
permit them to have any input, or to organize any opposition to
the application, before the municipal decision is made."

It is your view that the practice described above is inconsistent with law and you have sought
an opinion on the matter.

In this regard, I offer the following comments.

First, a key provision in an analysis of the issue is §86(4) of the Freedom of
Information Law which defines the term "record" expansively to mean:

"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 has construed the definition as broadly as its specific language
suggests. In the first decision focusing on the definition of "record", the Court emphasized
that the Freedom of Information Law must be construed broadly in order to achieve the goal
of government accountability, for the court found that:

"Key is the Legislature's own unmistakably broad declaration
that, '[a]s state and local government services increase and
public problems become more sophisticated and complex and
therefore harder to solve, and with the resultant increase in
revenues and expenditures, it is incumbent upon the state and
its localities to extend public accountability wherever and
whenever feasible' (emphasis added; Public Officers Law,
§84).

"For 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 objections 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
Rockland Newspapers v. Kimball, 50 NY2d 575, 579 (1980)].

In short, based on the language of the definition of "record", it is clear in my view
that the materials in question are subject to rights conferred by the Freedom of Information
Law as soon as they come into the possession of a municipality.

Second, 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. From my perspective, it is unlikely that any of
the grounds for denial could be asserted to withhold the kinds of records that you described.

It is noted the fact that the records are "predecisional"is not relevant. Such a
consideration may be pertinent in the context of §87(2)(g), which enables an agency to
withhold portions of "inter-agency and intra-agency materials." However, property owners
and developers are neither agency officials nor agencies. Section 86(3) of the Freedom of
Information Law defines the term "agency" to mean:

"any state or municipal department, board, bureau, division,
commission, committee, public authority, public corporation,
council, office or other governmental entity performing a
governmental or proprietary function for the state or any one or
more municipalities thereof, except the judiciary or the state
legislature."

Based on the foregoing, the exception pertains to communications between or among state or
local government officials at two or more agencies ("inter-agency materials"), or
communications between or among officials at one agency ("intra-agency materials"). Since
the records at issue consist of records sent to municipalities by members of the public or
entities that are not governmental, they would not constitute inter-agency or intra-agency
materials, and the exception typically cited to withhold predecisional materials would not
apply.

Lastly, 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..."

While 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 Court of Appeals 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)].

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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