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FOIL-AO-15094

January 4, 2005

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 your letter and the materials relating to it. You described a series of difficulties in obtaining certain records from the Amherst Central School District.

By way of background, in June, you requested copies of all contracts negotiated between the District and its bargaining units. The receipt of your request was acknowledged soon after, and you were informed by the District’s freedom of information officer that you would be contacted following review of your request by the Board of Education. After "some interim follow-up", you received a letter in October, "refusing release of the Teachers’ Contract (a new one of which is presently under negotiation)." You were told that the contract would be released at the close of negotiations. You appealed and received a letter of November 2 from the Board directing its Freedom of Information Officer to "forward you copies of all collective bargaining unit contracts that are not currently being negotiated by the Amherst Central School District." However, an invoice detailing the fees for copies of certain contracts excludes reference to the contract now in effect between the District and the Teachers’ Association, and to date, that contract has been withheld.

From my perspective, any contract currently in force is clearly accessible under the law. In this regard, I offer the following comments.

First, 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.

Second, contracts, bills, vouchers, receipts and similar records reflective of expenses incurred by an agency or payments made to an agency's staff must generally be disclosed, for none of the grounds for denial could appropriately be asserted to withhold those kinds of records. The only provision significant to an analysis of rights of access is §87(2)(c), which enables an agency to withhold records to the extent that disclosure would "impair present or imminent contract awards or collective bargaining negotiations." In a case decided twenty-five years ago by the Court of Appeals, the State's highest court, the facts involved rights of access to a compilation of salary and fringe benefit data concerning teachers and school district administrators from a number of school districts. The data was prepared based upon the terms of a series of collective bargaining agreements, contracts and related records indicating the salaries and benefits of school district officials. Although it was contended that the records could be withheld pursuant to §87(2)(c), the Court of Appeals found that there was no basis for denial [Doolan v. BOCES, 48 NY 2d 341 (1979)]. The records that were used in the preparation of the data in Doolan, collective bargaining contracts, were available, individually, from the school districts that participated in the study. The fact that collective bargaining negotiations might have been ongoing within a district or districts did not permit an agency to withhold a contract then in force or information derived from such a contract.

In short, while records involving ongoing collective bargaining negotiations might properly be withheld pursuant to §87(2)(c) on the ground that disclosure would impair the negotiations, I do not believe that there would be any basis for withholding a collective bargaining agreement that is currently in effect. It would have been accessible when initially signed by the parties, and it has been distributed to hundreds of members of the collective bargaining unit, as well as others. That negotiations are ongoing with respect to a new and as yet incomplete and unsigned agreement has no effect, in my opinion, on rights of access to the agreement now in force.

Second, based on the language of the law and judicial decisions, the District failed to comply with law in relation to the nature of its responses and the delays that you have encountered. 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..."

Based on the foregoing, an agency must grant access to records, deny access or acknowledge the receipt of a request within five business days of receipt of a request. When an acknowledgement is given, it must include an approximate date indicating when it can be anticipated that a request will be granted or denied.

I note that 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, or if they are readily retrievable, there may be no basis for a lengthy delay in disclosure. As the Court of Appeals 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)].

In a judicial decision that cited and confirmed the advice rendered by this office, Linz v. The Police Department of the City of New York (Supreme Court, New York County, NYLJ, December 17, 2001), it was held that:

"In the absence of a specific statutory period, this Court concludes that respondents should be given a ‘reasonable’ period to comply with a FOIL request. The determination of whether a period is reasonable must be made on a case by case basis taking into account the volume of documents requested, the time involved in locating the material, and the complexity of the issues involved in determining whether the materials fall within one of the exceptions to disclosure. Such a standard is consistent with some of the language in the opinions, submitted by petitioners in this case, of the Committee on Open Government, the agency charged with issuing advisory opinions on FOIL."

If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time after it acknowledges that a request has been received, or if the acknowledgement of the receipt of a request fails to include an estimated date for granting or denying access, 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 Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].

In an effort to enhance compliance with and understanding of the Freedom of Information Law, copies of this opinion will be forwarded to District officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Board of Education
Mark Whyle