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September 12, 2001

FOIL-AO-12940

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 your letter of August 17 in which you sought an advisory concerning a
request made under the Freedom of Information Law by Newsday reporter Christian Murray.

You wrote that Mr. Murray sought "copies of documents reflecting any zoning variances
granted on 70 known properties in the Town of Brookhaven" and has provided the Town with street
addresses, the names of current owners of the parcels and the "physical lot description (section-
block-lot) relating to each of the properties. Nevertheless, the Town indicated that the request must
include a "metes and bounds" description of each property, as well as the dates that the Zoning
Board of Appeals considered applications for variances. Further, you were informed that the Town
"would take two months to provide the requested records."

In this regard, I offer the following comments.

First, by way of historical background, when the Freedom of Information Law was initially
enacted in 1974, it required that an applicant request "identifiable" records. Therefore, if an
applicant could not name the record sought or "identify" it with particularity, that person could not
meet the standard of requesting identifiable records. In an effort to enhance its purposes, when the
Freedom of Information Law was revised, the standard for requesting records was altered. Since
1978, §89(3) has stated that an applicant must merely "reasonably describe" the records sought. 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 request, as well as the nature of an agency's filing
or 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 record keeping systems of the Town, to the extent that the
records sought can be located with reasonable effort, I believe that the request would have met the
requirement of reasonably describing the records. In Ruberti, Girvin & Ferlazzo v. Division of State
Police [218 AD2d 494, 641 NYS2d 411 (1996)], one element of the decision pertained to a request
for a certain group of personnel records, and the agency argued that it was not required to search its
files for those requested "because such records do not exist in a 'central file' and, further, that FOIL
does not require that it review every litigation or personnel file in search of such information" (id.,
415). Nevertheless, citing Konigsberg, the court determined that:

"Although the record before this court contains conflicting proof
regarding the nature of the files actually maintained by respondent in
this regard, an agency seeking to avoid disclosure cannot, as
respondent essentially has done here, evade the broad disclosure
provisions FOIL by merely asserting that compliance could
potentially require the review of hundreds of records" (id.).

If the Town can locate the records sought with a reasonable effort analogous to that described above,
i.e., even if a search involves the review of hundreds of records, it apparently would be obliged to
do so. As indicated in Konigsberg, only if it can be established that the Department maintains its
records in a manner that renders its staff unable to locate and identify the records would the request
have failed to meet the standard of reasonably describing the records.

Based on my experience, it would be unlikely that the Town could not locate the records on
the basis of the names of owners, a street address or section, lot and block of a parcel. I would
conjecture as well that the records sought may be maintained by more than one unit of the Town
government. In addition to the records of the Zoning Board of Appeals, the records might also be
maintained, typically by address, by the office of building inspector or code enforcement officer.

Second, with respect to the delay in disclosure of the records, 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, when such 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. 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, or if they can be located with reasonable effort,
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 acknowledges the
receipt of requests and indicates in every instance that it will determine to grant or deny access to
records within two months or some other 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 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 located with reasonable effort, there may be no rational basis for delaying disclosure. 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).

In an effort to enhance compliance with understanding of the Freedom of Information Law,
copies of this opinion will be forwarded to Town Officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Stan Allen, Town Clerk
Town Board