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March 19, 2001

FOIL-AO-12589

The staff of the Committee on Open Government is authorized to issue advisory opinions. The
ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear

I have received your letter in which you described a series of difficulties relating to your
request for "911 police radio dispatch tapes" concerning an event that occurred in 1988.

First, as you may be aware, agencies of local government are not required to maintain most
records permanently, and it is unlikely in my view that the tapes of your interest would continue to
exist. In that vein, I believe that an agency has essentially three options when responding to a request
for records: that the applicant may gain access to the record; that the agency is denying access to the
record; or that the agency does not maintain the record.

Second, §89(3) of the Freedom of Information Law requires that a request "reasonably
describe" the records sought. Therefore, a request should contain sufficient detail to enable agency
staff to locate and identify the records. In the case of a small police department in which dispatches
are received and transmitted in one location, I would conjecture that a request citing a certain date
likely would meet the standard of reasonably describing the records. On the other hand, if 911 calls
are received in different locations, due, for example, to the size or population of the county, a request
of that nature might not meet the standard of reasonably describing the records. It is suggested that
you resubmit a request for the records of interest, offering as much detail as possible concerning the
time of an emergency call, the location and any other detail that may enable agency staff to locate
the records. Again, if the records no longer exist, the agency would, in my view, be required to so
indicate.

I note that when an agency indicates that it does not maintain or cannot locate a record, an
applicant for the record may seek a certification to that effect. Section 89(3) of the Freedom of
Information Law provides in part that, in such a situation, on request, an agency "shall certify that
it does not have possession of such record or that such record cannot be found after diligent search."
If you consider it worthwhile to do so, you could seek such a certification.

I point out that in Key v. Hynes [613 NYS 2d 926, 205 AD 2d 779 (1994)], it was found that
a court could not validly accept conclusory allegations as a substitute for proof that an agency could
not locate a record after having made a "diligent search". However, in another decision, such an
allegation was found to be sufficient when "the employee who conducted the actual search for the
documents in question submitted an affidavit which provided an adequate basis upon which to
conclude that a 'diligent search' for the documents had been made" [Thomas v. Records Access
Officer, 613 NYS 2d 929, 205 AD 2d 786 (1994)].

Next, I believe that there is a distinction in the application of the Freedom of Information
Law between "enhanced" 911 records and other 911 records. The former are subject to section
308(4) of the County Law and cannot be disclosed. The latter, those that are not "enhanced," are not
subject to that statute, and rights of access to those records would in my view be subject to the
Freedom of Information Law. As you are aware, 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, the contents of the records in question would
determine the extent to which they may be available. For instance, if there was a medical
emergency, a denial of access based on a contention that disclosure would constitute "an
unwarranted invasion personal privacy [§§87(2)(b) and 89(2)(b)] may be proper. If reference is
made to a witness or informant, the record might be withheld based on §87(2)(f), which authorizes
an agency to withhold records when disclosure "would endanger the life or safety of any person."

Lastly, it is reiterated that it is unlikely that the records of your interest continue to exist.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

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