July 22, 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 in which you complained that you have written without success to both Governor Pataki and the Office of the Mayor of New York City to request copies of "the 'Moreland Acts' Commission reports (all 4) concerning the N.Y.C. Board of Education findings." You added that you "would also like the findings" of several other state and city agencies, as well as the FBI.
In this regard, it is noted at the outset that the Committee on Open Government is authorized to offer advice and opinions involving public access to records of entities of state and local government in New York, primarily in relation to the state's Freedom of Information Law. Since you referred to the FBI, I point out that the federal Freedom of Information Act (5 USC §552) is the statute that generally pertains to rights of access to records of federal agencies. That being so, the following comments will pertain only to agencies of state and local government subject to state law.
First, requests should be made to the agencies that you believe maintain the records of your interest. For instance, if it is your understanding that a particular report was prepared by or is in possession of the New York City Commission on Human Rights, a request should be made to that agency. Further, pursuant to the regulations promulgated by the Committee (21 NYCRR Part 1401), each agency is required to designate one or more persons as "records access officer." The records access officer has the duty of coordinating an agency's response to requests for records, and requests should ordinarily be made to him or her. When seeking records, §89(3) of the Freedom of Information Law requires that an applicant "reasonably describe" the records. Therefore, a request should contain sufficient detail to enable agency staff to locate and identify the records.
Second, 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 Law and Rules [Floyd v. McGuire, 87 AD2d 388, appeal dismissed 57 NY2d 774 (1982)].
Third, although I am unfamiliar with the contents of the records at issue, as a 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.
In consideration of the nature of the records, it is possible that the initial ground for denial of access, §87(2)(a), may be pertinent. That provision relates to records that "are specifically exempted from disclosure by state or federal statute." One such statute concerns records developed in a Moreland Act inquiry and states in part that:
"Any officer participating in such inquiry and any person examined as a witness upon such inquiry who shall disclose to any person other than the governor or the attorney-general the name of any witness examined or any information obtained upon such inquiry, except as directed by the governor or the attorney-general, shall be guilty of a misdemeanor."
Similarly, §5 Chapter 254 of the Unconsolidated Laws pertains to the State Commission on Investigation and contains the following language:
"Any person conducting or participating in any examination or investigation who shall disclose to any person other than the commission or an officer having the power to appoint one or more of the commissioners the name of any witness examined, or any information obtained or given upon such examination or investigation, except as directed by the governor or commission, shall be guilty of a misdemeanor."
In sum, while some of the records of your interest may have been disclosed previously or would be accessible, perhaps in part, under the Freedom of Information Law, it is possible that other aspects of the records would be exempt from disclosure. It is suggested, however, that requests be submitted to the records access officers at the agencies that maintain the records of your interest, and that the requests include sufficient detail to enable agency staff to locate the records.
I hope that I have been of assistance.
Robert J. Freeman