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July 23, 2001

FOIL-AO-12822

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, unless otherwise indicated.

Dear

I have received your letter and the correspondence relating to it. You have sought my views
concerning your request for records of the New York City Housing Development Corporation
("HDC"), particularly those involving expenses incurred by and reimbursements made to HDC's
president covering the period of June, 1996 to the present. In its initial response to your request,
which was made on February 6, you were informed that HDC "intended to provide access to most
of the records within ‘several weeks.'" Nevertheless, following an appeal based on your contention
that HDC had engaged in a constructive denial of access, you were informed that the records were
placed in "an off-site storage facility, were later moved and cannot be located."

In this regard, first, §653 of the Private Housing Finance Law specifies that HDC "shall be
a corporate governmental agency, perpetual in duration, and shall constitute a public benefit
corporation." Since the Freedom of Information Law is applicable to agencies, since §86(3) of that
defines the term "agency" to include public corporations, and since a public benefit corporation is
a kind of public corporation (see General Construction Law, §66), it is clear that HDC is required
to comply with that statute.

Second, §89(3) of the Freedom of Information Law requires that an applicant must
"reasonably describe" the records sought. Insofar as an agency has the ability to locate and identify
the records sought, irrespective of the volume of the records, it has been held that an applicant has
met the standard of reasonably describing the records [see Konigsberg v. Coughlin, 68 NY2d 245
(1986)]. In some circumstances, records of the same nature may be kept in different locations or by
different means depending on the passage of time and changes in record-keeping practices. For
instance, often records involving recent transactions must be readily retrievable, for they are needed
for guaranteeing payment and compliance with accounting standards. Following the consummation
of the transactions, the records may be transferred to a different site for storage. Similarly, in some
situations, records involving transactions occurring years ago were maintained in manual systems;
the same kinds of records, however, might now be maintained on electronic information systems.
The older records may be more difficult to locate than those pertaining to recent transactions.

Third, based on provisions dealing with the management, custody and preservation of
records, I believe that HDC is required to maintain the records in question in a manner that permits
their retrieval. By way of background, Article 57-A of the Arts and Cultural Affairs Law, the "Local
Government Records Law", deals with records management, and §57.17(1) defines "local
government" to include:

"...any county, city, town, village, school district, board of
cooperative educational services, district corporation, public benefit
corporation, public corporation, or other government created under
state law th at is not a state department, division, board, bureau,
commission or other agency, heretofore or hereafter established by
law."

While mayoral agencies of the City of New York are subject to provisions of the New York City
Charter and, for purposes of records management, fall under the aegis of the New York City
Department of Records and Information Services (DORIS), I was informed by that agency that HDC
falls beyond its jurisdiction. I was also told, however, by a representative of the State Archives,
which is authorized to implement Article 57-A, HDC is an "independent local government" and is,
therefore, required to comply with the provisions of the Local Government Records Law.

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."

With respect to the retention and disposal of records, §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...

2. No local officer shall destroy, sell or otherwise dispose of any
public record without the consent of the commissioner of education.
The commissioner of education shall, after consultation with other
state agencies and with local government officers, determine the
minimum length of time that records need to be retained. Such
commissioner is authorized to develop, adopt by regulation, issue and
distribute to local governments retention and disposal schedules
establishing minimum retention periods..." (emphasis added).

In view of the foregoing, records cannot be destroyed without the consent of the
Commissioner of Education, and local officials cannot destroy or dispose of records until the
minimum period for the retention of the records has been reached. The provisions relating to the
retention and disposal of records are carried out by the State Archives, which is a unit of the State
Education Department, and based on information provided by that agency, the records in question
must be retained for a minimum of six years. That being so, I believe that it is the duty of HDC to
ensure that the records sought be maintained in a manner that gives effect to the requirements of the
Local Government Records Law. Stated differently, because, due to their significance, the law
requires that they must be kept, preserved and protected for a minimum of six years, HDC should,
in my view, clearly have the capacity to locate and retrieve the records of your interest and disclose
them in accordance with the Freedom of Information Law.

Next, when an agency indicates that it cannot locate or does not maintain a record requested
under the Freedom of Information Law, §89(3) enables the applicant for the record to seek a
certification in which it is asserted by the agency "that it does not have possession of such record or
that such record cannot be found after diligent search." In addition, while I am not suggesting that
they apply, §89(8) of the Freedom of Information Law, which is Article Six of the Public Officers
Law, and §240.65 of the Penal Law deal with "unlawful prevention of public access to records." The
latter states that:

"A person is guilty of unlawful prevention of public access to records
when, with intent to prevent the public inspection of a record
pursuant to article six of the public officers law, he willfully conceals
or destroys any such record."

From my perspective, the preceding may be applicable in two circumstances: first, when an agency
employee receives a request for a record and indicates that the agency does not maintain the record
even though he or she knows that the agency does maintain the record; or second, when an agency
employee destroys a record following a request for that record in order to prevent public disclosure
of the record. I do not believe that §240.65 applies when an agency denies access to a record, even
though the basis for the denial may be inappropriate or erroneous, or when an agency cannot locate
a record that must be maintained.

Lastly, 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..."

Based on the foregoing, an agency must grant access to records, deny access or acknowledge
the receipt of a request within five business days of receipt of a request. When an acknowledgement
is given, it must include an approximate date indicating when it can be anticipated that a request will
be granted or denied. The acknowledgement by the records access officer did not make reference
to such a date.

I note that 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, and if they are
retrievable, there may be no basis for a lengthy delay in disclosure.

If neither a response to a request nor an acknowledgement of the receipt of a request is given
within five business days, or if an agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my opinion, be considered to have
been constructively denied. In such a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. That provision states in relevant part
that:

"...any person denied access to a record may within thirty days appeal
in writing such denial to the head, chief executive, or governing body,
who shall within ten business days of the receipt of such appeal fully
explain in writing to the person requesting the record the reasons for
further denial, or provide access to the record sought."

In addition, it has been held that when an appeal is made but a determination is not rendered
within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her administrative remedies and may initiate a
challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v.
McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Jerilyn Perine
David Boccio
Melissa Barkan