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September 8, 2000

FOIL-AO-12317

Dear

I have received your letter of August 11 in which you sought an opinion concerning
the procedure to be followed when responding to requests made under the Freedom of
Information Law.
Attached to your letter is a copy of a memorandum sent to department heads by the
County Attorney. In brief, the County Attorney directed that, when a request is received by
the County Clerk, it must be forwarded to the Law Department, which will acknowledge the
receipt of the request. The Law Department then sends a copy to the Department that
maintains the records, which in turn sends the records to the Law Department, which reviews
the records and determines to grant or deny access. Essentially the same procedure is
followed by other departments within County government.

As the designated records access officer for the County, it is your belief that the
procedure prescribed by the County Attorney is "inconsistent" with law. I agree, and in this
regard, I offer the following comments.

First, by way of background, §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, such as a county, to adopt rules and regulations
consistent with 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 officers shall not
be construed to prohibit officials who have in the past been
authorized to make records or information available to the
public form continuing from doing so."

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..."

In short, the records access officer has the authority and duty to "coordinate" an
agency's response to requests. As I understand the procedure, you, in your capacity as the
records access officer, are effectively stripped of your authority and responsibility.

Second, in my opinion, implementation of the procedure may be unnecessarily
cumbersome, for there are many instances in which County officials can readily respond to
requests pursuant to the direction given by the records access officer in an effort to
"coordinate" the County's response to requests. I would conjecture that most requests are
routine and can be handled without review by the County Attorney. For instance, if it is clear
and established that certain records are always public, such as permits, assessment records,
code violations and others too numerous to mention, there is no reason in my view why the
custodians of those records, pursuant to the direction given by the records access officer,
cannot routinely disclose those records without review by the Law Department. Similarly,
other records can clearly be withheld, such as pre-sentence reports maintained by a probation
department and records pertaining to applicants or recipients of public assistance maintained
by a department of social services. When it is known in advance that those records need not
be disclosed, again, it is unnecessary that requests or records be forwarded to the Department
of Law. If there is a question regarding rights of access that requires a legal opinion in
attempting to determine the extent to which records should be disclosed or withheld,
certainly consultation with an attorney would be appropriate. However, in other
circumstances, I believe that the procedure outlined by the County Attorney is unnecessary
and inefficient.

Third, it is likely that implementation of the procedure would delay granting access to
records and thereby be inconsistent with the intent of the Freedom of Information Law. As
you are aware, that statute 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 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)].

Further, in my opinion, if, as a matter of practice or policy, an agency acknowledges
the receipt of requests and indicates in every instance that it will determine to grant or deny
access to records following the date of acknowledgement, such a practice or policy would be
contrary to the thrust of the Freedom of Information Law. If a request is voluminous and a
significant amount of time is needed to locate records and review them to determine rights of
access, a delay, in view of those and perhaps the other kinds of factors mentioned earlier,
might be reasonable. On the other hand, if a record or report is clearly public and can be
found easily, there would appear to be no rational basis for a delay. In a case in which it was
found that an agency's "actions demonstrate an utter disregard for compliance set by FOIL",
it was held that "[t]he records finally produced were not so voluminous as to justify any
extension of time, much less an extension beyond that allowed by statute, or no response to
appeals at all" (Inner City Press/Community on the Move, Inc. v. New York City Department
of Housing Preservation and Development, Supreme Court, New York County, November 9,
1993).

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Carl F. Lodes