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April 17, 2001

FOIL-AO-12631

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,
unless otherwise indicated.

Dear

I have received correspondence from you relating to Mr. Smith's requests for records of
March 7 and March 15. The earlier request involves the following:

"1) Any and all correspondence and press releases issued by any
elected member of the Majority Office which in any way offers
criticism of Rensselaer County Executive Henry Zwack and District
Attorney Kenneth Bruno concerning any of the controversies
surrounding the conduct of their offices March 1 1997, to date. Such
controversies include:
A). The issues surrounding James Phillips including the allegations
that county staff was utilized for private legal work.
B). Any requests on any matter for a special prosecutor.
C). The no show job controversy and the resulting indictments in that
scandal.

2). Any and all memorandum, resolutions, draft resolutions,
correspondence or press releases calling for the holding of
legislative hearings into any of the controversies surrounding any of
the aforementioned issues in Item 1."

The latter involves:

"1) Copies of any notice of meetings, special meetings, agendas,
minutes to any legislative committee meetings to discuss the VanOrt
No Show Job Scandal or any related matters.

2). Copies of any correspondence on file from any member of the
Majority regarding the VanOrt no show job matter."

In conjunction with the foregoing, Mr. Crist sought guidance concerning the interpretation
of "some of the subjective terminology, such as ‘criticism' or ‘controversies', used by Mr. Smith in
the request." He also referred to the breadth of the requests and the extent to which records would
have to be reviewed in an effort to locate those falling within the scope of the requests. Mr. Smith
received a copy of Mr. Crist's letter to me and attempted to clarify his request, for on March 15, he
wrote that:

"While it is clear to me when reading a press release or memo
whether the content contains criticism of a persons actions or an
event, perhaps we can remove the subjective portion of the request by
simply asking you to provide ‘any and all correspondence and press
releases issued by any elected member of the Majority Office
containing simple ‘REFERENCES' to Rensselaer County Executive
Henry Zwack and District Attorney Kenneth Bruno's conduct in any
of the controversies surrounding their offices March 1, 1997 to date.
Such controversies would include: the James Phillips controversy,
the no show job scandal, the indictments, and the special prosecutor"
(emphasis supplied by Mr. Smith).

Although the amended request excludes the term "criticism", for future reference, I believe
that the use of that kind of term may not reasonably describe records, for it involves the making of
a judgment. For instance, in discussing the matter with Mr. Crist, he described a portion of a
meeting during a member of the Legislature questioned or expressed opposition to a purchase by the
County Executive and asked whether reference to that kind of commentary in minutes of a meeting
or other records might constitute criticism. In my view, whether that is so involves the making of
a subjective judgment. While one might consider commentary of that nature to reflect criticism,
another might not. In short, identifying records that indicate criticism might, in some circumstances,
be problematic, and such a request may not, at least in part, reasonably describe the records.

With respect to the breadth of the requests, I point out that it has been held by the Court of
Appeals that to deny a request on the ground that it fails to reasonably describe the records, an
agency must establish that "the descriptions were insufficient for purposes of locating and identifying
the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

The Court in Konigsberg found that the agency could not reject the request due to its breadth
and also stated that:

"respondents have failed to supply any proof whatsoever as to the
nature - or even the existence - of their indexing system: whether the
Department's files were indexed in a manner that would enable the
identification and location of documents in their possession (cf.
National Cable Tel. Assn. v. Federal Communications Commn., 479
F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability
under Federal Freedom of Information Act, 5 USC section 552 (a)(3),
may be presented where agency's indexing system was such that ‘the
requested documents could not be identified by retracing a path
already trodden. It would have required a wholly new enterprise,
potentially requiring a search of every file in the possession of the
agency']) (id. At 250)."

In my view, whether a request reasonably describes the records sought, as suggested by the Court
of Appeals, may be dependent upon the terms of a requests, as well as the nature of an agency's
filing of record-keeping system. In Konigsberg, it appears that the agency was able to locate the
records on the basis of an inmate's name and identification number.

While I am unfamiliar with the recordkeeping systems of the County Legislature, to the
extent that the records sought can be located with reasonable effort, I believe that the requests would
have met the requirement of reasonably describing the records. On the other hand, if the records are
not maintained in a manner that permits their retrieval except by reviewing perhaps hundreds or even
thousands of records individually in an effort to locate those falling within the scope of the request,
to that extent, the requests would not in my opinion meet the standard reasonably describing the
records.

Again, I am unaware of the manner in which the records sought are kept or filed. Mr. Crist
indicated that approximately four-hundred press releases are issued annually, but that they are not
filed by subject matter. They are, however, obviously available for review, and he said that Mr.
Smith could do so and have copies of those of interest. More difficult in all likelihood would be
locating "correspondence" that falls within the scope of the request. Unless it is kept or filed in a
manner that enables staff locate the materials of Mr. Smith's interest with reasonable effort, it does
not appear that that aspect of the request would meet the standard imposed by the law.

Second, while press releases and minutes of open meetings are clearly public, other records
sought might be withheld. Assuming that a request has reasonably described the records and that
the records have been found, pertinent, particularly with respect to correspondence, is §87(2)(g).
That provision authorizes an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by
the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-
agency or intra-agency materials may be withheld, portions of such materials consisting of statistical
or factual information, instructions to staff that affect the public, final agency policy or
determinations or external audits must be made available, unless a different ground for denial could
appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that
are reflective of opinion, advice, recommendation and the like could in my view be withheld.

If, for instance, a member of the Legislature in an item of correspondence offered an opinion
regarding a controversy, that portion of the correspondence could in my view be withheld.

Lastly, 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)].

 

 

 

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

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