July 14, 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.
I have received your letter relating to a delay in the disclosure of records by the Office of Parks, Recreation and Historic Preservation. Although the request is extensive, it is your belief that some of the records sought are readily accessible and should be released now. In response to that contention, you were informed that:
"...there doesn't appear to be any provision in the Public Officer's [sic] Law compelling an Agency to respond piecemeal to verbal statements, withdrawals, or changing priorities to a written foil request...
"Certainly, you had the option of splitting your written request for information into parts that you felt might concern information more easily gathered than others, but chose instead to make the request as you did...
"This office stands by our original good faith estimate of the time required..."
You have asked whether an agency may delay the disclosure of records readily retrievable until a determination is made with respect to the entirety of the request.
In this regard, I offer the following comments.
First, since you suggested in your letter that some aspects of your request "should not have required a FOIL letter in the first place", I point out that an agency, pursuant to §89(3) of the Freedom of Information Law, may require that a request be made in writing, even when records are clearly accessible to the public. This is not to suggest that an agency must require an applicant to seek records in writing; on the contrary, the regulations promulgated by the Committee on Open Government state that an agency "may make records available upon oral request" [21 NYCRR §1401.5(a)].
Second and most important in my view, every law, including the Freedom of Information Law, should be implemented in a manner that gives reasonable effect to its intent. To give reasonable effect to the intent of the Freedom of Information Law, I believe that an agency must grant access to records "wherever and whenever feasible." The phrase quoted in the preceding sentence appears in §84, the legislative declaration, which states in part that:
"The legislature hereby finds that a free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government.
"As state and local government services increase and public problems become more sophisticated and complex and therefore harder to solve, and with the resultant increase in revenues and expenditures, it is incumbent upon the state and its localities to extent public accountability wherever and whenever feasible" (emphasis added).
From my perspective, if records are clearly available to the public under the Freedom of Information Law and if they are readily retrievable, there may be no basis for a lengthy delay in disclosure. As the state's highest court, 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)].
A relatively recent judicial decision cited and confirmed the advice rendered by this office. In Linz v. The Police Department of the City of New York (Supreme Court, New York County, NYLJ, December 17, 2001), it was held that:
"In the absence of a specific statutory period, this Court concludes that respondents should be given a 'reasonable' period to comply with a FOIL request. The determination of whether a period is reasonable must be made on a case by case basis taking into account the volume of documents requested, the time involved in locating the material, and the complexity of the issues involved in determining whether the materials fall within one of the exceptions to disclosure. Such a standard is consistent with some of the language in the opinions, submitted by petitioners in this case, of the Committee on Open Government, the agency charged with issuing advisory opinions on FOIL."
Following the receipt of the acknowledgment indicating that you could anticipate a response within thirty days, you wrote that you telephoned the agency to ask "whether certain information might be available sooner, and attempted to prioritize five of the sixteen items" sought. Your priorities may involve records that are easy to locate and clearly public or, contrarily, records that may be difficult to locate and time consuming to review for the purpose of determining rights of access. In my view, your priorities may be considered, but not necessarily honored. More important is the ability of the agency to locate and/or review the contents of the records. Irrespective of your priorities, I believe that an agency, to give effect to the intent of the law, must disclose the records that are easy to locate and clearly public "whenever feasible." I would conjecture, for example, that records reflective of the qualifications of park police officers, the number of park police officers employed during certain recent years, training requirements and salary information would be readily retrievable. Others, however, such as those involving incidents in which seasonal officers have lost or misplaced firearms, or those concerning the role of park police officers in the prevention or investigation of terrorism, may involve substantial search time or the need to review the records to determine the extent to which they may be withheld in accordance with the grounds for denial of access appearing in §87(2) of the Freedom of Information Law.
In sum, insofar as the request involves records that are clearly public and readily retrievable, I believe that a delay in disclosure of as much as thirty days would be inconsistent with the intent of the law and its judicial construction. However, a delay of that length may be reasonable with respect to other aspects of your request.
I hope that I have been of assistance.
Robert J. Freeman
cc: Tom McCarthy