January 19, 2006
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.
I have received your letter and the correspondence addressed to you by Dr. Roger Bleidner, Secretary/Deputy Treasurer of the Islip Fire District. Dr. Bleidner suggested a series of changes in the Freedom of Information Law, and you have asked for my views concerning his suggestions.
Dr. Bleidner referred initially to the fees that may be charged. He correctly indicated that the maximum that may be charged for a photocopy up to nine by fourteen inches is twenty-five cents, and that no fee may be charged for the inspection of records that are accessible in their entirety under the Freedom of Information Law. He recommended that "the hourly wage of the person doing the research and copying be charged."
In this regard, first, I recall that the Office of General Services was contacted soon after the Freedom of Information Law became effective in 1974 to ascertain the actual cost of preparing photocopies based on typical state contracts, and we were informed that the cost then was approximately 6 ½ cents per photocopy. Now, however, the actual cost of a preparing a photocopy is a penny per photocopy or less. It seems that one of the few items that has diminished in cost over the past thirty years involves the preparation of photocopies.
Second, in terms of its philosophy and intent, the Freedom of Information Law is supposed to offer maximum access to government records at a minimal price, in order that the public may use the law in a manner that is meaningful to their lives or work. The Court of Appeals appears to have recognized that to be so in Doolan v. BOCES, in which the Court rejected the notion of furnishing information "on a cost-accounting basis" and held that "Meeting the public’s legitimate right of access to information concerning government is fulfillment of a governmental obligation, not the gift of, or waste of, public funds" [48 NY2d 341, 347 (1979)]. Stated differently, giving effect to the Freedom of Information Law is not an extra task that government officials are required to carry out; rather, doing so is part of our governmental duty.
Third, reference was made to "the many hours required to research and produce the requested documents." I would conjecture that in most small units of local government, such as fire districts, records are often relatively easy to locate. When that is not so, when records cannot be found with reasonable effort, it has been advised that the request does not "reasonably describe" the records sought as required by §89(3) of the Freedom of Information Law.
Based on the language of the law and its judicial construction, a request made for a specific document or documents does not necessarily indicate that a person seeking the record has made a valid request that must be honored by an agency. In considering the requirement that records be "reasonable described", the Court of Appeals 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, 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 Suffolk County telephone directory is a fire district record and that you request portions of the directory identifying those persons whose last name is "Johnson", 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 Johnsons, the request would be valid. But what if you request those listings in the directory identifying all of those persons whose first name is "John?" 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 John 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 short, agency staff are not required to engage in herculean or unreasonable efforts in locating records to accommodate a person seeking records. I note, too, that in a related vein, §89(3) also states in part that an agency is not required to create a record in response to a request. Therefore, the Freedom of Information Law pertains to existing records, and agencies are not required to prepare new records, totals or lists that do not otherwise exist.
Enclosed is an excerpt from the recent report to the Governor and the State Legislature by the Committee on Open Government. In brief, it is the Committee’s belief that the use of and disclosures made as a result of the Freedom of Information Law save taxpayers millions of dollars every year. In consideration of those savings and the preceding commentary, I do not believe that there is any justification for raising or altering the fees that currently may be assessed under the Freedom of Information Law.
Dr. Bleidner’s second, third and fourth recommendations relate essentially to the same issue. He suggests that an attorney making a request should identify the client and that all requests must indicate the purpose for which the request is made. He also recommended that a request should be accepted only "from a resident residing in the district involved." That suggestion is contrary to judicial decisions and the basic thrust of the law.
When records are accessible under the Freedom of Information Law, it has been held that they should be made equally available to any person, regardless of one's status, interest or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals has held that:
"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on government decision-making, its ambit is not confined to records actually used in the decision-making process. (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request" [Farbman v. New York City Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].
Farbman pertained to a situation in which a person involved in litigation against an agency requested records from that agency under the Freedom of Information Law. In brief, it was found that one's status as a litigant had no effect upon that person's right as a member of the public when using the Freedom of Information Law, irrespective of the intended use of the records. Similarly, unless there is a basis for withholding records in accordance with the grounds for denial appearing in §87(2), in my opinion, the residence of an applicant or use of the records are irrelevant.
In my view, the nature and content of records, as well as the effects of disclosure, are the key factors that must be considered in determining rights of access to records, or conversely, the ability to deny access. Whether I am a resident of a fire district, a reporter for Newsday, or a foreign national should have no bearing on rights of access. The contents of minutes of meetings of a board of fire commissioners remain the same, irrespective of the identity or residence of an applicant. Similarly, if a resident or anyone else seeks a public employee’s social security number, his or her identity or interest are of no significance; by its nature, the social security number may be withheld because disclosure would constitute "an unwarranted invasion of personal privacy" [see §87(2)(b)]. Just as significant, often persons or firms own or operate businesses in a municipality but do not reside in the municipality. Clearly they have an interest in the operation of government in the municipality in which their businesses are located, and just as clearly, in my opinion, they must enjoy the same rights of access as any resident. Again, the status, the interest, the residence of a person seeking records should be of no significance. If a record may justifiably be withheld under an exception appearing in §87(2) of the Freedom of Information Law, any member of the public may be denied access. On the other hand, if no exception applies, any member of the public should be able to gain access.
Next, Dr. Bleidner recommended that "requests for documents should be for no more than 2 years", and that his fire district has received a request "for 5-10 years back." In this regard, it is reiterated that an applicant must reasonably describe the records sought, and that, therefore, an agency is not required to engage in unreasonable efforts to locate what may be old records. Perhaps more importantly, most records do not have to be kept as long as Dr. Bleidner has suggested. Under Article 57-A of the Arts and Cultural Affairs Law, the State Archives, under the direction of the Commissioner of Education, develops schedules indicating minimum retention periods for various categories of records. While records of importance may have to be retained for extended periods of time or even permanently, others can be discarded within relatively short periods. For example, this office, based on a retention schedule, has the authority to discard most of its records within three years. Others, such as written advisory opinions and minutes of meetings of the Committee on Open Government, are kept permanently. I would suggest that Fire District staff review its retention schedule or contact the State Archives in order to determine the length of time that records must be retained before they may be discarded.
Additionally, as you are aware, there are numerous instances in which records more than two years old are critical. Records involving land use or zoning more than two years old are often important in the decision making process. Actions taken by government bodies that are memorialized in minutes of meetings are frequently significant, even though the actions might have been taken years ago. Many policies, local enactments and similar records of importance to the public were prepared or adopted more than two years ago. In short, I do not believe that Dr. Bleidner’s suggestion has merit.
Lastly, it was suggested that "if a request is denied, then an arbitrator should be assigned, and the courts should not be involved due to legal costs." This issue, how best to resolve disputes arising under a freedom of information law, has been the subject of a great deal of discussion. I point out that the services offered by this office, which are provided without a fee to either government officials or the public, frequently serve to educate and resolve disputes in a manner that negates the necessity to initiate litigation. Since 1995, with a staff never greater than four, this office has responded to approximately 82,000 telephone inquiries, of which nearly 40,000 were made by state and local government officials and 25,000 by members of the public; we have prepared more than 9,000 written advisory legal opinions, many of which are available in full text on our website. The reality, however, is that if a dispute cannot be resolved through education or mediation, the only enforcement mechanism involves the initiation of a judicial proceeding. For reasons discussed in the Committee’s annual report, that occurs relatively infrequently.
I note that every state in the United States has enacted a law concerning public access to government records. There is only one state, however, that has created a quasi-judicial review mechanism, Connecticut. Its Freedom of Information Commission has the authority to review denials of access to records and make determinations. Its budget is approximately ten times that of our office in New York, even though its population is one-sixth of New York’s. Clearly the cost of implementing an alternative to judicial review would be expensive. Preferable in the Committee’s view would be the enactment of provisions designed to encourage compliance with the Freedom of Information Law by deterring unreasonable denials of access. A portion of the Committee’s annual report dealing with that issue is included in the attached excerpt.
In sum, while I recognize Dr. Bleidner’s concerns, many of them can be effectively addressed by fire districts and other agencies through better understanding and implementation of existing law.
Certainly the Committee on Open Government would welcome your support of the proposed legislation described in its report, and if you or your staff would like to discuss the legislation or any aspect of the matters considered here, it would be my pleasure to do so.
I hope that I have been of assistance.
Robert J. Freeman