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August 17, 2000

FOIL-AO-12286

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 Ms. Henderson:

I have received your letter of July 12, as well as the correspondence attached to it.
You have sought assistance in your efforts in obtaining information from the Department of
Labor relating to your unemployment insurance claim.

In this regard, first, pursuant to regulations promulgated by the Committee on Open
Government (21 NYCRR Part 1401), each agency is required to designate one or more
persons as "records access officer." The records access officer has the duty of coordinating
an agency's response to requests for records, and requests should ordinarily be made to that
person. While I believe that the person in receipt of your request should have responded in a
manner consistent with the Freedom of Information Law or forwarded the request to the
proper person, it is suggested, if you have not yet received a response, that you resubmit the
request to Jerome Tracy, Records Access Officer, NYS Department of Labor, State Campus,
Building 12, Albany, NY 12240. Mr. Tracy can be reached by phone at (518)457-4380.

Second, 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..."

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)].

Third, having reviewed your request, I point out that the Freedom of Information Law
pertains to existing records, and that §89(3) states in part that an agency is not required to
created a record in response to a request. Therefore, if, for example, there is no record
containing an "explanation as to why [you] have not received payments yet", the Department
would not be obliged to prepare a record containing an explanation on your behalf.

Next, with respect to rights of access to existing records, 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.

Relevant to the matter is the first ground for denial, §87(2)(a), which pertains to
records that "are specifically exempted from disclosure by state or federal statute." One such
statute is §537 of the Labor Law, which is entitled "Disclosures prohibited", and which states
in subdivision (1) that:

"[I]nformation acquired from employers or employees pursuant
to this article shall be for the exclusive use and information of
the commissioner in the discharge of his duties hereunder and
shall not be open to the public nor be used in any court in any
action or proceeding pending therein unless the commissioner
is a party to such action or proceeding, notwithstanding any
other provisions of law. Such information insofar as it is
material to the making and determination of a claim for
benefits shall be available to the parties affected and, in the
commissioner's discretion, may be made available to the parties
affected in connection with effecting placement."

To the extent that the records sought fall within the scope of §537, they would be
confidential, unless they are "material to the making and determination of a claim for
benefits" or the Commissioner of Labor asserts his discretionary authority to disclose records
for the purpose of effecting placement in a job.

Lastly, I note that the Town of Van Buren, your former employer, is also an agency
subject to the Freedom of Information Law. In my view, records maintained by the Town
would not fall within the scope of §537 of the Labor Law, and the restrictions imposed by
that statute would not apply. Therefore, it may be worthwhile to seek records from the Town
pursuant to the Freedom of Information Law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Jerome Tracy