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September 20, 2001

 

FOIL-AO-12953

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 in which you sought assistance in obtaining records from the
Department of Correctional services, and raised a variety of questions concerning the Freedom of
Information Law.

In this regard, I offer the following comments.

First, 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..."

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 [see DeCorse v. City of Buffalo, 239 AD2d 949, 950 (1997)]. 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 5 NY 2d 774 (1982)].

Second, as general matter, 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.

Third, I point out that the retention and disposal of records are governed by the Arts and
Cultural Affairs Law. Specifically, §57.05 of the Arts and Cultural Affairs Law provides that the
Commissioner of Education is empowered:

"[t]o authorize the disposal or destruction of state records including
books, papers, maps, photographs, microphotographs or other
documentary materials made, acquired or received by any agency. At
least forty days prior to the proposed disposal or destruction of such
records, the commissioner of education shall deliver a list of the
records to be disposed of or destroyed to the attorney general, the
comptroller and the state agency that transferred such records. No
state records listed therein shall be destroyed if within thirty days
after receipt of such list the attorney general, comptroller, or the
agency that transferred such records shall notify the commissioner
that in his opinion such state records should not be destroyed."

Fourth, the Freedom of Information Law pertains to existing records. Section 89(3) of that
statute provides in part that an agency is not required to prepare a record that is not maintained by
the agency in response to a request. In short, if the record in question does not exist, the Freedom
of Information Law would not apply.

Fifth, 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."

Lastly, enclosed are the advisory opinions that you requested.

I hope that I have been of assistance.

Sincerely,

 

David M. Treacy
Assistant Director

DMT:jm

Encs.