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June 18, 2001

FOIL-AO-12737

E-MAIL

TO:

FROM: Robert J. Freeman, Executive Director

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 questioned the authority of the Office of the Erie
County District Attorney to limit the time afforded you to inspect records to twenty minutes during
a given day.

In this regard, 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 in which an issue 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 Office of the District Attorney, in my view, cannot limit your
ability to inspect records to a period less than its regular business hours.

I do not believe, however, that a member of the public may designate the date or dates on
which he or she seeks to review records. If, for instance, records will be in use by staff on a
particular date or during a particular period of time, an agency would not, in my view, be required
to alter its schedule or work plan. In that instance, the agency could offer a series of dates to the
person seeking to inspect the records in order that he or she could choose a date suitable to both
parties. Similarly, if a request involves a variety of items, while the applicant may ask that certain
records be made available sooner than others, I do not believe that he or she can require an agency
to make records available in a certain order.

I hope that I have been of assistance.

cc: Records Access Officer, Office of the Erie County District Attorney