August 19, 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.
As you are aware, I have received your letter in which you raised two issues. The first involves a statement attributed to me suggesting that the Town Board may require that you, in your capacity as Town Clerk, must require persons seeking records from the Town to use a prescribed form. The other pertains to a resolution adopted by the Board that states in part that the fees for photocopies "shall be $.25 per page..." You wrote, however, that you "would not charge $.25 for any copy produced."
In my view, the Town Board, the governing body of the Town, has the obligation to promulgate rules and regulations concerning the procedural implementation of the Freedom of Information Law, as well as fees, pursuant to §87(1) of the Freedom of Information Law. Subparagraph (b)(iii) of that provision specifies that such rules and regulations must include reference to "the fees for copies of records which shall not exceed twenty-five cents per photocopy not in excess of nine inches by fourteen inches..." Based upon that grant of authority conferred upon the Town Board, I believe that it is empowered to determine and direct that fees for photocopies of records "shall be $.25 per page." In that instance, the matter in my opinion is not within your area of discretionary authority, but rather that of the Town Board.
In contrast, I believe that a requirement that a form prescribed by the Town is needed to request records is inconsistent with law and, therefore, is invalid. As you may be aware,§89(3) of the law, as well as the regulations promulgated by the Committee (21 NYCRR §1401.5), require that an agency respond to a request that reasonably describes the record sought within five business days of the receipt of a request. Neither the law nor the regulations refers to, requires or authorizes the use of standard forms. Accordingly, it has consistently been advised that any written request that reasonably describes the records sought should suffice.
It has also been advised that a failure to complete a form prescribed by an agency cannot serve to delay a response or deny a request for records. A delay due to a failure to use a prescribed form might result in an inconsistency with the time limitations imposed by the Freedom of Information Law. For example, assume that an individual requests a record in writing from an agency and that the agency responds by directing that a standard form must be submitted. By the time the individual submits the form, and the agency processes and responds to the request, it is probable that more than five business days would have elapsed, particularly if a form is sent by mail and returned to the agency by mail. Therefore, to the extent that an agency's response granting, denying or acknowledging the receipt of a request is given more than five business days following the initial receipt of the written request, the agency, in my opinion, would have failed to comply with the provisions of the Freedom of Information Law.
While the Law does not preclude an agency from developing a standard form, as suggested above, I do not believe that a failure to use such a form can be used to delay a response to a written request for records reasonably described beyond the statutory period. However, a standard form may, in my opinion, be utilized so long as it does not prolong the time limitations discussed above. For instance, a standard form could be completed by a requester while his or her written request is timely processed by the agency. In addition, an individual who appears at a government office and makes an oral request for records could be asked to complete the standard form as his or her written request.
In sum, it is my opinion that the use of standard forms is inappropriate to the extent that it unnecessarily serves to delay a response to or deny a request for records.
I hope that I have been of assistance.
Robert J. Freeman
cc: Town Board