October 27, 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 and the materials attached to it. Having requested "a list of all teachers and administrators by name, title and most recent salary" from the Cheektowaga-Maryvale Union Free School District on September 22, you were informed that the records would be made available by November 1. Because "what [you] requested is required by law to exist", you contend that "it doesn't seem reasonable...that they need 38 (29 business) days to make it available..."
You have requested my view of the matter, and in this regard, I offer the following comments.
First, to put the matter into perspective, with certain exceptions, the Freedom of Information Law does not require an agency to create records. Section 89(3) of the Law states in relevant part that:
"Nothing in this article [the Freedom of Information Law] shall be construed to require any entity to prepare any record not in possession or maintained by such entity except the records specified in subdivision three of section eighty-seven..."
However, a payroll list of employees is included among the records required to be kept pursuant to "subdivision three of section eighty-seven" of the Law. Specifically, that provision states in relevant part that:
"Each agency shall maintain...
(b) a record setting forth the name, public office address, title and salary of every officer or employee of the agency... "
As such, a payroll record that identifies all officers or employees by name, public office address, title and salary must be "maintained" to comply with the Freedom of Information Law.
Second, if an agency complies with the Freedom of Information Law by maintaining the record of your interest, I do not believe that there would be any valid basis for delaying disclosure. That statute 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..."
While an agency must grant access to records, deny access or acknowledge the receipt of a request within five business days, when such acknowledgement is given, there is no precise time period within which an agency must grant or deny access to records. The time needed to do so may be dependent upon the volume of a request, the possibility that other requests have been made, the necessity to conduct legal research, the search and retrieval techniques used to locate the records and the like. In short, when an agency acknowledges the receipt of a request because more than five business days may be needed to grant or deny a request, so long as it provides an approximate date indicating when the request will be granted or denied, and that date is reasonable in view of the attendant circumstances, I believe that the agency would be acting in compliance with law.
Notwithstanding the foregoing, in my view, 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, which is so in this instance, and if they are readily retrievable, which should be so because the record at issue must be maintained, there may be no basis for a lengthy delay in disclosure. As the Court of Appeals, the state's highest court, 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)].
I hope that I have been of assistance.
Robert J. Freeman
cc: Robert J. Tauriello