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FOIL-AO-13850

January 30, 2003

 

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 most recent letters in which you asked this office to "address" a matter
regarding an alleged "unlawful prevention of public access to records" and to provide you with
"prosecution information." You also asked whether an agency is required to compare a record
provided by you to an original maintained by the agency and certify that it is a true copy. Finally,
you questioned the propriety of a response from the Chemung County District Attorney's Office
which indicated that your request was "too general and unspecific."

In this regard, I point out that the Committee on Open Government is authorized to provide
advice concerning the Freedom of Information Law. The Committee is not empowered to enforce
that statute or to compel an agency to grant or deny access to records. However, based on a review
of the correspondence, I offer the following comments.

First, it is noted that in response to one of your previous requests for an advisory opinion, this
office wrote to you on August 26, 2002, regarding the applicability of Penal Law §240.65, which
relates to the unlawful prevention of public access to records. This office does not maintain
"prosecution information" on this or any other matter. In the event you have misplaced our previous
correspondence, enclosed please find a copy of that opinion.

Second, regarding the certification of records, §89(3) of the Freedom of Information Law
states in relevant part that, in response to a request for a record, "the entity shall provide a copy of
such record and certify to the correctness of such copy if so requested..." From my perspective, the
certification required by the Freedom of Information Law does not involve an assertion that the
contents of a record are accurate, but rather that a copy of a record made available in response to a
request is a true copy. In essence, the certification is supposed to signify that the applicant received
an actual copy of a record maintained by an agency, irrespective of the accuracy or the "factuality"
of the contents of the record.

Lastly, you questioned the propriety of a response which indicated your request was "too
general and unspecific." In this regard, I note that the Court of Appeals has held 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 recordkeeping systems of the District Attorney's office, 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. On the other hand, if the
records are not maintained in a manner that permits their retrieval except by reviewing perhaps
hundreds or even thousands of records individually in an effort to locate those falling within the
scope of the request, to that extent, the request would not in my opinion meet the standard of
reasonably describing the records.

As requested, a copy of this opinion is being sent to the Chemung County District Attorney's
Office.

 

 

I hope that I have been of assistance.

Sincerely,


David M. Treacy
Assistant Director

DT:jm
cc: Chemung County District Attorney