August 8, 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 facts presented in your correspondence, unless otherwise indicated.
As you are aware, I have received you letter and the correspondence attached to it. Please accept my apologies for the delay in response.
Based on a review of the materials and our conversation, the issue that you raised involves an alleged refusal by the City of Syracuse to certify that records that you requested either do not exist or could not be found. In this regard, 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."
Additionally, the regulations promulgated by the Committee on Open Government state in part that an agency’s records access officer has the duty of coordinating an agency’s response to requests and assuring that agency personnel:
"Upon failure to locate records, certify that:
(i) the agency is not the custodian for such records; or
(ii) the records of which the agency is a custodian cannot be found after diligent search" [21 NYCRR §1401.2(b)(6)].
I hope that I have been of assistance.
Robert J. Freeman
cc: Joseph Francis Bergh