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August 2, 2000

FOIL-AO-12254

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 and apologize for the delay in response. You have asked
"what the penalties are for lying on a FOIL/FOIA/PA request."

In this regard, since this is a New York State agency, my response will be limited to
the application of the New York Freedom of Information Law. That statute in §89(8) and
§240.65 of the Penal Law include essentially the same language. Specifically, the latter
states that:

"A person is guilty of unlawful prevention of public access to
records when, with intent to prevent the public inspection of a
record pursuant to article six of the public officers law, he
willfully conceals or destroys any such record."

From my perspective, the preceding may be applicable in two circumstances: first, when an
agency employee receives a request for a record and indicates that the agency does not
maintain the record even though he or she knows that the agency does maintain the record; or
second, when an agency employee destroys a record following a request for that record in
order to prevent public disclosure of the record. I do not believe that §240.65 applies when
an agency denies access to a record, even though the basis for the denial may be
inappropriate or erroneous, or when an agency cannot locate a record that must be
maintained.

That statute indicates that unlawful prevention of public access to records is a
violation. The term "violation" is defined in §10.00(3) of the Penal Law to mean "an offense,
other than a 'traffic infraction', for which a sentence to a term in excess of fifteen days cannot
be imposed." Additionally, §80.05(4) of the Penal Law states that: "A sentence to pay a fine
for a violation shall be a sentence to pay an amount, fixed by the court, not exceeding two
hundred fifty dollars." Based on the foregoing, it appears that a person found guilty of a
violation may serve up to fifteen days in jail and/or be fined up to $250.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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