December 16, 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, unless otherwise indicated.
As you are aware, I have received a variety of correspondence from you concerning your requests for records made to Rockland County. It is your view "that the Freedom of Information Law is being deliberately and knowingly violated by some County officials", and you asked whether I agree and that I inform County officials of the obligations imposed by that statute.
In short, based on conversations with several County officials, I disagree, for it appears that the County has engaged in substantial efforts to make the records sought available to you. It is my understanding that the County has disclosed and that you have made copies of all records in its possession that fall within the scope of your requests.
I was informed that from February 23 to March 25, you used your scanner to copy County records five days a week, focusing on the records of the County Highway Department and Drainage Agency; that from March 30 to May 6, for two days per week, you continued your review and copying of the records sought; and that from July 7 to October, you spent one day a week reviewing and copying records. In sum, it is my understanding that you have inspected and copied the complete contents of thirty-three boxes of documents, and that there are no additional documents requested that are maintained by the County. As stated by Charles H. Vezzetti, Superintendent of Highways, in a letter dated November 1:
"All documents have been made available to you that are in our possession. Your continued implication that documents that you have requested have not been provided is unfair and untrue. We cannot provide what we do not have."
In an attempt to address your contentions and concerns, and to offer clarification regarding the County’s obligations relative to the Freedom of Information Law, I offer the following additional comments.
First, in several instances, you referred to "specific documents" that might not have been made available. Similarly, following your review of records that make reference to other records, you requested those other records. For example, in a letter of November 9 addressed to the Drainage Agency, you wrote as follows in one aspect of a request:
"In Box # 6, there is a document referring to the Nauraushan Brook with the Heading W.M. Walsh Company, Inc., Creskill, New Jersey, Test Boring Data. In the document, there are details of Test Hole No. B-7 for Adler Associates completed 5/21/73. There was no other Test Boring data. I request copies of the Test Boring data from the location just above the Private Bridge and downstream to Lake Tappan."
From my perspective, a request made for a "specific document" does not necessarily indicate that a person seeking the record has made a valid request that must be honored by an agency. As you are aware, based on our discussions and materials previously sent to you, §89(3) of the Freedom of Information Law states in part that an applicant must "reasonably describe" the records sought. In considering that requirement, the Court of Appeals, the state’s highest court, has indicated that whether or the extent to which a request meets the standard may be dependent on the nature of an agency’s filing, indexing or records retrieval mechanisms [see Konigsburg v. Coughlin, 68 NY2d 245 (1986)]. When an agency has the ability to locate and identify records sought in conjunction with its filing, indexing and retrieval mechanisms, it was found that a request meets the requirement of reasonably describing the records sought, irrespective of the volume of the request. By stating, however, that an agency is not required to follow "a path not already trodden" (id., 250) in its attempts to locate records, I believe that the Court determined, in essence, that agency officials are not required to search through the haystack for a needle, even if they know or surmise that the needle may be there.
For purposes of further illustration, assuming that the Rockland County telephone directory is a County record and that you request portions of the directory identifying those persons whose last name is "Cheeseman", the request would meet the requirement of reasonably describing the records, for items in the directory are listed alphabetically by last name. Even if there were ten thousand Cheeseman’s, the request would be valid. But what if you request those listings in the directory identifying all of those persons whose first name is "James?" The request is specific and it is certain that, as a common first name, there are such entries. Nevertheless, to locate the entries pertaining to persons whose first name is James would require an entry by entry search of the entire directory. Despite the specificity of the request and the certainty that the entries sought are included within the record, the request, in my opinion, would not "reasonably describe" the records as required by the Freedom of Information Law.
In the context of some of your requests, you apparently obtained records that made reference to another "specific document", and requested that other document. In my view, a request of that nature would not necessarily reasonably describe the record in accordance with the direction provided by the Court of Appeals. When an agency cannot locate the document with reasonable effort and an attempt to do so would involve the equivalent of a search for the needle in the haystack or for entries in the telephone book for those persons whose first name is James, the request, in my view, would not reasonable describe the records as required by law.
I am not suggesting that in such a circumstance there is any fault or deficiency on the part of either the person seeking records or an agency. Very simply, I do not believe that an agency is required to engage in an effort of such magnitude to satisfy the obligations imposed by the Freedom of Information Law.
Second, as you are aware, 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 diligent search." If you consider it worthwhile to do so, you could seek such a certification.
I note, too, that an agency is not required to maintain most of its records permanently. Pursuant to Article 57-A of the Arts and Cultural Affairs Law, the Commissioner of Education establishes schedules indicating minimum retention periods applicable to local government records. When the minimum retention period has been reached, an agency may dispose of or destroy its records. Since many of the records sought relate to events that occurred more than thirty years ago, it is likely that some of those records were legally destroyed in accordance with the retention schedule.
Lastly, it has been held that an agency is not required to make records available a second time when the records had previously been obtained by the person seeking the records or his or her representative, unless it can be proven that neither the person seeking the records nor his or her representative any longer maintains possession of the records [Lebron v. Morales, 706 NYS2d 329, 271 AD2d 241 (2000), mot lv to app den, 714 NYS2d 710, 95 NY2d 760; see also Moore v. Santucci, 151 AD2d 677 (1989)].
I hope that the foregoing serves to clarify your understanding of the matter and that I have been of assistance.
Robert J. Freeman
cc: Sue Sherwood
Charles H. Vezzetti