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January 17, 2001

FOIL-AO-12460

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 December 11 in which you sought assistance in encouraging
the Town of Red Hook to comply with laws dealing with public access to records. You made
specific reference to difficulties associated with gaining access to records relating to a draft
environmental impact statement (DEIS).

In this regard, it is emphasized at the outset that the Committee on Open Government is
authorized to provide advice and opinions relating to public access to government records, primarily
under the Freedom of Information Law. Although it is our goal that opinions rendered by this office
be educational and persuasive, the Committee cannot compel an agency to grant or deny or access
or otherwise comply with law. Nevertheless, in an effort to enhance compliance with law by the
Town, I offer the following comments.

First, 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 NY2d 575, 579 (1980)].

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 disclosure, in view of those and perhaps the
other kinds of factors mentioned earlier, might be reasonable. On the other hand, if records are
clearly public and can be found easily, there would appear to be no rational basis for delaying
disclosure. 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).

Second, it has been advised by this office and held judicially that an agency cannot limit the
ability of the public to inspect records to a period less than its regular business hours. By way of
background, §89 (1)(b)(iii) of the Freedom of Information Law requires the Committee on Open
Government to promulgate regulations concerning the procedural implementation of the Law (see
21 NYCRR Part 1401). In turn, §87 (1) requires agencies to adopt rules and regulations consistent
with the Law and the Committee's regulations.

Section 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..."

Section 1401.4 of the regulations, entitled "Hours for public inspection", states that:

"(a) Each agency shall accept requests for public access to records
and produce records during all hours they are regularly open
for business."

Relevant to the matter is a decision rendered by the Appellate Division, and among the issues
was the validity of a limitation regarding the time permitted to inspect records established by a
village pursuant to regulation. The Court held that the village was required to enable the public to
inspect records during its regular business hours, stating in part that:

"...to the extent that Regulation 6 has been interpreted as permitting
the Village Clerk to limit the hours during which public documents
can be inspected to a period of time less than the business hours of
the Clerk's office, it is violative of the Freedom of Information
Law..." [Murtha v. Leonard, 620 NYS 2e 101 (1994), 210 AD 2d
411].

Based on the foregoing, the Town, in my view, cannot limit the ability to inspect records to
a period less than its regular business hours.

Third, the "Local Government Records Law", Article 57-A of the Arts and Cultural Affairs
Law, deals with the management, custody, retention and disposal of records by local governments.
For purposes of those provisions, §57.17(4) of the Arts and Cultural Affairs Law defines "record"
to mean:

"...any book, paper, map, photograph, or other information-recording
device, regardless of physical form or characteristic, that is made,
produced, executed, or received by any local government or officer
thereof pursuant to law or in connection with the transaction of public
business. Record as used herein shall not be deemed to include
library materials, extra copies of documents created only for
convenience of reference, and stocks of publications."

Further, §57.25 of the Arts and Cultural Affairs Law states in relevant part that:

"1. It shall be the responsibility of every local officer to maintain
records to adequately document the transaction of public business and
the services and programs for which such officer is responsible; to
retain and have custody of such records for so long as the records are
needed for the conduct of the business of the office; to adequately
protect such records; to cooperate with the local government's records
management officer on programs for the orderly and efficient
management of records including identification and management of
inactive records and identification and preservation of records of
enduring value; to dispose of records in accordance with legal
requirements; and to pass on to his successor records needed for the
continuing conduct of business of the office..."

Even while others may have physical possession of Town records, I point out that §30 of the
Town Law indicates that the Town Clerk is the legal custodian of all Town records. Consistent with
that provision is §57.19 of the Arts and Cultural Affairs Law, which states in part that a town clerk
is the "records management officer" for a town.

With respect to the implementation of the Freedom of Information Law, §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 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."

As such, the Town Board has the duty to promulgate rules and ensure compliance. 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, the records access officer must "coordinate" an agency's response
to requests. As part of that coordination, I believe that other Town officials and employees are
required to cooperate with the records access officer in an effort to enable him or her to carry out his
or her official duties.

Lastly, I believe that the DEIS and related records must be made "readily available" pursuant
to provisions of law other than the Freedom of Information Law. For instance, §8-0109(6) of the
Environmental Conservation Law states that:

"To the extent as may be prescribed by the Commissioner pursuant
to section 8-0113, the environmental impact statement prepared
pursuant to subdivision two of this section together with the
comments of public and federal agencies and members of the public,
shall be filed with the commissioner and made available to the public
prior to acting on the proposal which is the subject of the
environmental impact statement.

The regulations prescribed by the Commissioner, which appear in 6 NYCRR 617.10, refer to "Draft
EIS's" (environmental impact statements), and state in subdivision (e) that:

"The draft EIS, together with the notice of its completion, shall be
filed and made available for copying as follows:

(1) one copy with the commissioner;

(2) one copy with the appropriate regional office of the department;

(3) one copy with the chief executive officer of the political
subdivision in which the action will be principally located;

(4) if other agencies are involved in the approval of the action, with
each such agency;

(5) one copy with persons requesting it. When sufficient copies of
a statement are not available, the lead agency may charge a fee to
persons requesting the statement to cover the costs in making the
additional statement available..."

Subdivision (h), which pertains to "final" EIS's, states that "The final EIS, together with notice of
its completion, shall be filed in the same manner as a draft EIS". Further, subdivision (i) provides
that "Each agency which prepares notices, statements and findings required in this part shall retain
copies thereof in a file which is readily available for public inspection"(emphasis added).

In an effort to enhance compliance with and understanding of applicable law, copies of this
opinion will be sent to Town officials.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Hon. Margaret Doty, Town Clerk
Town Board