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FOIL-AO-14547

March 2, 2004

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.

Dear

As you are aware, I have received a variety of materials from you relating to requests made under the Freedom of Information Law, notably to the offices of the Suffolk County Clerk and the District Attorney.

You referred in your requests particularly to §700 of the County Law and focused on the language of subdivision (1), which states in part that a district attorney required "to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he or she shall have been elected or appointed." You also cited several opinions rendered by the Attorney General relating to that provision. The substance of those opinions has been consistent and advised that:

"It has long been recognized...that the district attorney and his assistants need not personally prosecute every offense committed within their jurisdiction (People v. Van Sickle, 13 NY2d 61 [1963]; People v. Czajka, 11 NY2d 253 [1962]). Petty crimes and offenses may be prosecuted by administrative officers of a local government and by attorneys (ibid.). The district attorney, however, by law has the responsibility for prosecution of all crimes and offenses and, therefore, must set up a system whereby he knows of all criminal prosecutions in the county and consents to appearance on his behalf by other public officials or private attorneys (People v. Van Sickle, supra; 1979 OP Atty Gen [Inf] 28, 245)" (1986 Op Atty Gen [Inf] 123).

Based on the foregoing, you requested "any and all records referring to and/or describing any and all terms and or conditions" involving the implementation of such a "system" as it pertains to present or former officers of the Town of Islip, as well as any others involved with the Town of Islip. The FOIL officer for the District Attorney wrote that the request was "overbroad." Similarly, you requested records indicating "designations of the order in which assistant district attorneys were and/or are to carry out" their responsibilities under the County Law. In response, you were informed that the County does not possess any records "resembling your request." You also requested rules adopted for the purpose of implementing the Freedom of Information Law, as well as a subject matter list. The request was denied by the County Clerk’s FOIL officer on the ground that it did not "reasonably describe" the records as required by §89(3) of the Freedom of Information Law. Other related requests were made, but they will not be detailed for purposes of this response, which will be general in nature.

First, as suggested in the correspondence, the Freedom of Information Law pertains to existing records, and §89(3) provides that agencies are not required to create a new record or records in response to a request. However, two of the records sought involve exceptions to that general principle.

By way of background, §89(1)(b)(iii) of the Freedom of Information Law requires the Committee on Open Government to promulgate regulations concerning the procedural aspects of the Law (see 21 NYCRR Part 1401). In turn, §87(1)(a) of the Law states that:

"the governing body of each public corporation shall promulgate uniform rules and regulations for all agencies in such public corporation pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article, pertaining to the administration of this article."

In this instance, I believe that the public corporation is the County, and that the governing body would be the County Legislature. If that is so, the County Legislature was required to promulgate appropriate uniform rules and regulations applicable to entities within County government consistent with those adopted by the Committee on Open Government and with the Freedom of Information Law within sixty days of January 1, 1978, the effective date of the law.

The initial responsibility to deal with requests is borne by an agency's records access officer, and the Committee's regulations provide direction concerning the designation and duties of a records access officer. Specifically, §1401.2 of the regulations provides in relevant part that:

"(a) The governing body of a public corporation and the head of an executive agency or governing body of other agencies shall be responsible for insuring compliance with the regulations herein, and shall designate one or more persons as records access officer by name or by specific job title and business address, who shall have the duty of coordinating agency response to public requests for access to records. The designation of one or more records access officers shall not be construed to prohibit officials who have in the past been authorized to make records or information available to the public from continuing to do so."

When a request is denied, it 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."

I would conjecture that the office of the County Clerk is subject to the uniform rules and regulations applicable to units and departments within Suffolk County government. If that is so, any such rules or procedures should have been made available in response to your request.

I am unaware, however, of whether the uniform rules would be applicable in the case of the office of a district attorney. Of possible significance to the issue is §700(7) of the County Law, which suggests that a district attorney maintains control of the records of his office. That provision states that:

"The district attorney shall keep and preserve all records now or hereafter in his care or custody or under his control and all records, books and papers relating to the functioning of his office or the performance of his duties. No such record, book or paper shall be destroyed or otherwise disposed of, except pursuant to law. At the expiration of his term, the district attorney shall, within sixty days, turn over all such records, books or papers to his successor in office."

Another area which deals with custody and control of records involves the duties of a district attorney in relation to investigations and grand jury proceedings. In a Court of Appeals decision concerning that issue, and whether "the presence of an unauthorized prosecutor may create the possibility of prejudice", it was stated that "[g]enerally, the District Attorney is the prosecutorial officer with the responsibility to conduct all prosecutions for crimes and offenses cognizable by the courts of the county in which he serves", and that "[d]uring the actual proceedings, the legal adviser of the Grand Jury is the District Attorney and legal advice from any other source is improper" [People v. DiFalco, 44 NY2d 482, 486-487]. The Court held further that "[s]ecrecy is a vital requisite of Grand Jury proceedings (CPL 190.25, subd 4) and its actions and deliberations must be ‘uninfluenced by the presence of those not officially and necessarily connected with it’...The unauthorized appearance of this prosecutor infringes upon the secrecy requirement, thereby, impairing the integrity of the proceeding" (id., 488).

In conjunction with the foregoing, there may be situations in which requests are made for records that may potentially be used in grand jury proceedings. In those cases, it would appear that only the district attorney would or should have the authority to review records for the purpose of determining an appeal made under the Freedom of Information Law.

In short, pursuant to §87(1) of the Freedom of Information Law, the offices of the County Clerk and the District Attorney, as well as any other entity of Suffolk County government, are required to implement the responsibilities imposed by that statute based on procedural rules and regulations that must, by law, exist. Insofar as they do exist, in my opinion, they would clearly be accessible.

With respect to the subject matter list, §89(3) 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 possessed or maintained by such entity except the records specified in subdivision three of section eighty-seven..." One of those records is the subject matter list. Specifically, §87(3) states that:

"Each agency shall maintain...

c. a reasonably detailed current list by subject matter, of all records in the possession of the agency, whether or not available under this article."

The "subject matter list" required to be maintained under §87(3)(c) is not, in my opinion, required to identify each and every record of an agency; rather I believe that it must refer, by category and in reasonable detail, to the kinds of records maintained by an agency. Further, the regulations promulgated by the Committee on Open Government state that such a list should be sufficiently detailed to enable an individual to identify a file category of the record or records in which that person may be interested [21 NYCRR 1401.6(b)]. I emphasize that §87(3)(c) does not require that an agency ascertain which among its records must be made available or may be withheld. Again, the Law states that the subject matter list must refer, in reasonable detail, to the kinds of records maintained by an agency, whether or not they are available.

It has been suggested that the records retention and disposal schedules developed by the State Archives and Records Administration at the State Education Department may be used as a substitute for the subject matter list.

Next, with regard to records reflective of the "system" used by the District Attorney to carry out his duties generally or in relation to the Town of Islip, while such a system must exist, there is nothing in the Freedom of Information Law requiring that such records must have been prepared or must exist. I note that when an agency indicates that it does not maintain or cannot locate a record, an applicant for the record may seek a certification to that effect. Section 89(3) of the Freedom of Information Law provides in part that, in such a situation, on request, an agency "shall certify that it does not have possession of such record or that such record cannot be found after a diligent search." If you consider it worthwhile to do so, you could seek such a certification.

Insofar as such records are in existence, 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. Policies, procedures and instructions to staff that affect the public are, according to subparagraphs (ii) and (iii) of §87(2)(g), accessible. The extent to which any such records exist is unknown to me.

Since the issue of "reasonably describing" the records and the breadth of a request was referenced as an issue in the correspondence, I point out that it has been held by the Court of Appeals that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

The Court in Konigsberg found that the agency could not reject the request due to its breadth and 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 requests, as well as the nature of an agency’s filing of record-keeping system. In Konigsberg, it appears that the agency was able to locate the records on the basis of an inmate’s name and identification number.

While I am unfamiliar with the recordkeeping systems of the entities at issue, to the extent that records sought can be located with reasonable effort, I believe that the requests would have met the requirement of reasonably describing the records. On the other hand, insofar as records are not maintained in a manner that permits their retrieval only by reviewing perhaps hundreds or even thousands of records individually in an effort to locate those falling within the scope of a request, a request would not in my opinion meet the standard reasonably describing the records.

Lastly, with respect to oaths and undertakings, as you are likely aware, §§402 and 403 of the County Law require respectively that oaths be filed and undertakings be executed. When an oath is filed or an undertaking is executed, records reflective of those actions would, in my view, be accessible under the Freedom of Information Law. However, there is nothing in the Freedom of Information Law that directs a district attorney or others to take particular actions in relation to the filing of an oath of office or execute an undertaking. There may be direction in other statutes, but those matters are beyond the scope of the authority or expertise of this office. Again, with certain exceptions, two of which were discussed earlier, the Freedom of Information Law pertains to existing records maintained by or for an agency.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Hon. Thomas Spota
Hon. Edward P. Romaine
John M. Kennedy, Jr.