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May 22, 2001

FOIL-AO-12681

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 a copy of your letter of March 27 in which you sought an advisory opinion
concerning several issues relating to the Freedom of Information Law. The original letter must have
been misplaced, and I apologize for the error.

You have asked for guidance:

"...as to the appropriate procedures which must be followed by the
Town of Orangetown, Office of Building, Zoning, Planning,
Administration and Enforcement (OBZPAE) when OBZPAE receives
a Freedom of Information Law (FOIL) request to view and/or copy
OBZPAE records relating to a pending land use application file.
Members of the citizenry and OBZPAE staff have expressed concerns
to this Office relating to the time period in which OBZPAE must
provide access/disclosure, under FOIL, to records relating to pending
land use applications files (e.g., site development plan and
subdivision plat applications), and whether certain documentation
(e.g., land use boards' clerks' handwritten notes/minutes of meetings)
constitute a ‘record' as defined by Public Officers Law (FOIL)
§86(4)."

In this regard, I offer the following comments.

First, I note by way of background that §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 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."

In short, I believe that the Town Board has the overall responsibility of ensuring compliance with
the Freedom of Information Law and that the records access officer has the duty of coordinating
responses to requests.

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, again, the records access officer must "coordinate" an agency's
response to requests. Therefore, I believe that when an official receives a request, he or she, in
accordance with the direction provided by the records access officer, must respond in a manner
consistent with the Freedom of Information Law or forward the request to the records access officer.

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..."

While an agency must grant access to records, deny access or acknowledge the receipt of a
request within five business days, I do not believe that the reference to five business days is intended
to serve as a means of delaying disclosure. On the contrary, that reference in my view is intended
to serve, in general, as a limitation on the time within which an agency must respond and disclose
records. If additional time is need and an 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. 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)].

Further, in my opinion, if, as a matter of practice or policy, an agency delays disclosure until
the fifth business day following the receipt of a request or acknowledges the receipt of a request and
indicates in every instance that it will determine to grant or deny access to records within some
particular period, 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 disclosure, 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 delaying disclosure for even as much as five business days.
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).

Next, with respect to the status of notes, i.e., notes pertaining to meetings of various boards,
it is emphasized that the Freedom of Information Law is applicable to all agency records, and that
§86(4) of that statute defines the term "record" expansively to include:

"any information kept, held, filed, produced, reproduced by, with or
for an agency or the state legislature, in any physical form whatsoever
including, but not limited to, reports, statements, examinations,
memoranda, opinions, folders, files, books, manuals, pamphlets,
forms, papers, designs, drawings, maps, photos, letters, microfilms,
computer tapes or discs, rules, regulations or codes."

The Court of Appeals has construed the definition as broadly as its specific language
suggests. The first such decision that dealt squarely with the scope of the term "record" involved
documents pertaining to a lottery sponsored by a fire department. Although the agency contended
that the documents did not pertain to the performance of its official duties, i.e., fighting fires, but
rather to a "nongovernmental" activity, the Court rejected the claim of a "governmental versus
nongovernmental dichotomy" [see Westchester Rockland Newspapers v. Kimball, 50 NY2d 575,
581 (1980)] and found that the documents constituted "records" subject to rights of access granted
by the Law. Moreover, the Court determined that:

"The statutory definition of 'record' makes nothing turn on the
purpose for which it relates. This conclusion accords with the spirit
as well as the letter of the statute. For not only are the expanding
boundaries of governmental activity increasingly difficult to draw, but
in perception, if not in actuality, there is bound to be considerable
crossover between governmental and nongovernmental activities,
especially where both are carried on by the same person or persons"
(id.).

In another decision rendered by the Court of Appeals, the Court focused on an agency claim
that it could "engage in unilateral prescreening of those documents which it deems to be outside of
the scope of FOIL" and found that such activity "would be inconsistent with the process set forth in
the statute" [Capital Newspapers v. Whalen, 69 NY 2d 246, 253 (1987)]. The Court determined that:

"...the procedure permitting an unreviewable prescreening of
documents - which respondents urge us to engraft on the statute -
could be used by an uncooperative and obdurate public official or
agency to block an entirely legitimate request. There would be no
way to prevent a custodian of records from removing a public record
from FOIL's reach by simply labeling it 'purely private.' Such a
construction, which would thwart the entire objective of FOIL by
creating an easy means of avoiding compliance, should be rejected"
(id., 254).

Perhaps most pertinent is a case involving notes taken by the Secretary to the Board of
Regents that he characterized as "personal" in conjunction with a contention that he prepared the
notes in part "as a private person making personal notes of observations...in the course of" meetings.
In that decision, the court cited the definition of "record" and determined that the notes did not
consist of personal property but rather were records subject to rights conferred by the Freedom of
Information Law [Warder v. Board of Regents, 410 NYS 2d 742, 743 (1978)].

In sum, I believe that the notes in question are "records" that fall within the coverage of 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. As
indicated in Warder, insofar as notes consist of a factual rendition of events occurring or comments
offered during a meeting, they would be accessible [see §87(2)(g)(i)].

Lastly, you referred to a contention that records cannot be disclosed until they have been
reviewed by certain officials. From my perspective, that records might not have been reviewed by
those officials is largely irrelevant to rights of access. Even if records are never reviewed by those
officials, they would be subject to rights of access. Moreover, I believe that a response to a request
for those records must be given in a manner consistent with the commentary offered in the initial
portion of this opinion. In my view, not every official or staff person within an agency must be an
expert with respect to the Freedom of Information Law. Again, it is the duty of the records access
officer to coordinate the Town's response to requests, and I do not believe that each official or staff
person in possession of records should have the authority to determine whether or when those
records should be disclosed. If there is any question concerning procedure or the Town's obligation
to disclose, the records access officer should be informed so that she can have the ability and
opportunity to carry out her duties effectively on behalf of the Town.

I hope that I have been of assistance. Should any further questions arise, please feel free to
contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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