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FOIL-AO-14474

                                                                                                January 22, 2004

 

Dear

            I have received your letter in which you complained about your difficulty in obtaining records from the New York City Department of Corrections that indicate the identity of your visitors while you were placed in the “Queens Criminal Court holding pens...among those inmates awaiting conferences with their attorney’s and/or testimony and dispositions with the Grand Jury.”  You  further wrote that “[t]here is a Corrections Desk and Log Book for signing in inmates, and signatures for visiting attorneys etc...”

            In this regard, I offer the following comments.

            First, 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)].

            Second, if a list is maintained that pertains only to your visitors, I believe that it would be accessible.  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. From my perspective, if such a list exists, none of the grounds for denial would be applicable. 
If, however, no separate visitors list is maintained with respect to each inmate, rights of access may be different.  For instance, if a visitor's log or similar documentation is kept in plain sight and can be viewed by any person, and if the staff at the facility have the ability to locate portions of the log of your interest, I believe that those portions of the log would be available. If such records are not kept in plain sight and cannot ordinarily be viewed, it is my opinion that those portions of the log pertaining to persons other than yourself could be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy.  In short, the identities of those with whom a person associates is, in my view, nobody's business.

            A potential issue involves the requirement imposed by §89(3) of the Freedom of Information Law that an applicant “reasonably describe the records sought.  In considering that standard, the State’s highest court has found that to meet the standard, the terms of a request must be adequate to enable an agency to locate the records, and that an agency must “establish that ‘the descriptions were insufficient for purposes of locating and identifying the documents sought’...before denying a FOIL request for reasons of overbreadth” [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

            Although it was found in the decision cited above that the agency could not reject the request due to its breadth, it was 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 systems.  In Konigsberg, it appears that the agency was able to locate the records on the basis of an inmate’s name and identification number.

            I am unaware of the means by which a visitors log, if it exists, is kept or compiled.  If an inmate’s name or other identifier can be used to locate records or portions of records that would identify the inmate’s visitors, it would likely be easy to retrieve that information, and the request would reasonably describe the records.  On the other hand, if there are chronological logs of visitors and each page would have to be reviewed in an effort to identify visitors of a particular inmate, I do not believe that agency staff would be required to engage in such an extensive search.

            I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                David Treacy
                                                                                                Assistant Director

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