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 FOIL-AO-14251

September 10, 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 facts presented in your correspondence.

Dear

I have received your memorandum and the editorial attached to it. The editorial includes an "open government pledge", and you asked whether acceptance of a certain sentence within the pledge precludes you from asking that a request made under the Freedom of Information Law be in writing. That sentence states that:

"I will support prompt, easy public access to public records and I will oppose unnecessary delays in provide public records and I will oppose a requirement for an official Freedom of Information request for records; except where there is a question of legal privacy matters."

In this regard, §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..."

Based on the foregoing, it is clear in my opinion that an agency may require that a request be made in writing.

Nevertheless, I believe that 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 are readily retrievable, there may be no basis for a delay in disclosure.

That being so, the regulations promulgated by the Committee on Open Government, which have the force of law, provide in part that an agency may accept oral requests [see 21 NYCRR §1401.5 (a)]. In my view, agencies should be consistent in treatment of requests. If a request for certain records is required to be made in writing by one person, others, in my opinion, should be required to do the same. However, when a request is routine and requires no search, an agency can waive the requirement of submitting a written request. For instance, if a clerk's minute book is kept close at hand, and a person asks to inspect the minutes, there may be no reason for making or requiring a written request. On the other hand, if a request involves numerous records, a substantial search, or the need to review records to determine the extent to which they must be disclosed, it is clear that a written request may be required.

I note that it has been advised that an agency cannot require that a request be made on a prescribed form. To reiterate, the Freedom of Information Law, §89(3), as well as the regulations promulgated by the Committee (21 NYCRR 1401.5), require that an agency respond to a request that reasonably describes the record sought within five business days of the receipt of a request. Neither the Law nor the regulations refers to, requires or authorizes the use of standard forms. Accordingly, it has long been advised that a failure to complete a form prescribed by an agency cannot serve to delay a response or deny a request for records. A delay due to a failure to use a prescribed form might result in an inconsistency with the time limitations imposed by the Freedom of Information Law. For example, assume that a person mails a request and that the agency responds by directing that a standard form must be submitted. By the time the individual submits the form, and the agency receives and responds to the request, it is probable that more than five business days would have elapsed. Therefore, to the extent that an agency's response granting, denying or acknowledging the receipt of a request is given more than five business days following the initial receipt of the written request, the agency, in my opinion, would have failed to comply with the provisions of the Freedom of Information Law.

Lastly, the pledge refers the absence of a need for "an official Freedom of Information request...except where there is a question of legal privacy matters." While the protection of privacy is a valid concern, there are numerous other instances in which records or portions of records may be withheld. 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.

 

I hope that I have been of assistance. Should any further questions arise, please feel free to contact me.

Sincerely,

Robert J. Freeman
Executive Director

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