FOIL-AO-16073

July 17, 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 information presented in your correspondence.

Dear

We are in receipt of your request for an advisory opinion and materials pertaining to it concerning a request you made pursuant the Freedom of Information Law to the Delaware County Board of Supervisors. According to your materials, you were denied access to 13 categories of records on the ground that your request is "too vague and indefinite." You were denied further review on appeal to the Chairman with no additional explanation. When you contacted the County’s attorney by telephone, he was not willing to discuss any specific items in the request. In this regard, we offer the following comments.

First, it is questionable, if not doubtful, in our view, that every one of the 13 requests you submitted for records is "too vague and indefinite" to identify any records maintained by the County.

Although the Freedom of Information Law as initially enacted required that an applicant must seek "identifiable" records, since 1978 it has merely required that an applicant "reasonably describe" the records sought. Moreover, it has been held by the Court of Appeals, the state’s highest court, that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

The Court in Konigsberg found that the agency could not reject the request due to its breadth and also stated that:

"respondents have failed to supply any proof whatsoever as to the nature - or even the existence - of their indexing system: whether the Department's files were indexed in a manner that would enable the identification and location of documents in their possession (cf. National Cable Tel. Assn. v Federal Communications Commn., 479 F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability under Federal Freedom of Information Act, 5 USC section 552 (a) (3), may be presented where agency's indexing system was such that 'the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency'])" (id. at 250).

In our view, whether a request reasonably describes the records sought, as suggested by the Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing or record-keeping system. In Konigsberg, it appears that the agency was able to locate the records on the basis of an inmate's name and identification number.

While we are unfamiliar with the record keeping systems of the County, to the extent that the records sought can be located with reasonable effort, we believe that the request would have met the requirement of reasonably describing the records. In Ruberti, Girvin & Ferlazzo v. Division of State Police [218 AD2d 494, 641 NYS2d 411 (1996)], one element of the decision pertained to a request for a certain group of personnel records, and the agency argued that it was not required to search its files those requested "because such records do not exist in a 'central file' and, further, that FOIL does not require that it review every litigation or personnel file in search of such information" (id., 415). Nevertheless, citing Konigsberg, the court determined that:

"Although the record before this court contains conflicting proof regarding the nature of the files actually maintained by respondent in this regard, an agency seeking to avoid disclosure cannot, as respondent essentially has done here, evade the broad disclosure provisions FOIL by merely asserting that compliance could potentially require the review of hundreds of records" (id.).

If County staff can locate the records of your interest with a reasonable effort analogous to that described above, it would be obliged to do so. As indicated in Konigsberg, only if it can be established that the County maintains its records in a manner that renders its staff unable to locate and identify the records would the request have failed to meet the standard of reasonably describing the records.

For example, your request for "copies of all resolutions that have been passed or adopted by the County Board since January 1, 1995 pertaining to the development of wind energy in the County, including but not limited to siting, planning and/or financing of wind energy facilities" would require, perhaps, the review of a large volume of documents. In this regard, subdivision (1) of §106 of the Open Meetings Law pertains to minutes of open meetings, and at a minimum, directs that minutes consist of a record of summary of motions, proposals, resolutions, action taken and the votes of the members. Your request may require the review of all minutes produced since 1995. It may be that they are organized by topic, in which case your request would not be unreasonable. If they can reviewed electronically, and searched within a short period of time, it is our opinion that the volume of documents alone may not be grounds for denial of this request.

While the requests that you have submitted appear broad and identify a large volume of records, according to the case law described above, it is our opinion that it would be unreasonable to reject each of your requests. Additionally, the regulations promulgated by the Committee on Open Government, which have the force and effect of law, state that an agency’s designated records access officer has the duty of assuring that agency personnel "assist persons seeking record to identify the records sought, if necessary, and when appropriate, indicate the manner in which the records are filed, retrieved or generated to assist persons in reasonably describing records" and further, "to contact persons seeking records when a request is voluminous or when locating the records sought involves substantial effort, so that agency personnel may ascertain the nature of records of primary interest and attempt to reasonably reduce the volume of the records requested" (21 NYCRR 1401.2[b][2] and [3]). This was the basis for our suggestion to you that you contact the County in an effort to ascertain which records could be obtained more easily.

We note that some of your requests, for example the first, for "all records pertaining to wind energy development" are too broad, and in our opinion would not reasonably describe records sought as it could require a search of every record ever prepared by the County, an effort of which is clearly not contemplated by the Law.

To the extent that the request does reasonably describe the records, the remaining issues involve rights of access.

With respect to your questions about enforcement mechanisms available under the law, and the role of the Committee on Open Government, we direct your attention to §89(4) of the Freedom of Information Law, which provides for review pursuant to Article 78 of the Civil Procedure Law and Rules and attorney’s fees and other litigation costs reasonably incurred in certain instances. Please note that while the Committee on Open Government is authorized to issue advisory opinions concerning application of the Freedom of Information Law, this office has no authority to enforce the law or compel an entity to comply with the statutory provisions.

Finally, with respect to your question about the timeliness of the County’s responses, 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, which shall be reasonable under the circumstances of the request, when such request will be granted or denied..."

It is noted that new language was added to that provision on May 3, 2005 (Chapter 22, Laws of 2005) stating that:

"If circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part."

Based on the foregoing, an agency must grant access to records, deny access in writing, 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 within twenty business days indicating when it can be anticipated that a request will be granted or denied. If it is known that circumstances prevent the agency from granting access within twenty business days, or if the agency cannot grant access by the approximate date given and needs more than twenty business days to grant access, however, it must provide a written explanation of its inability to do so and a specific date by which it will grant access. That date must be reasonable in consideration of the circumstances of the request.

The amendments clearly are intended to prohibit agencies from unnecessarily delaying disclosure. They are not intended to permit agencies to wait until the fifth business day following the receipt of a request and then twenty additional business days to determine rights of access, unless it is reasonable to do so based upon "the circumstances of the request." It is our perspective that every law must be implemented in a manner that gives reasonable effect to its intent, and we 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, when 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 delay in disclosure. As the Court of Appeals, the state’s highest court, 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 concerning the reasonableness of a delay in disclosure that cited and confirmed the advice rendered by this office concerning reasonable grounds for delaying disclosure, it was held that:

"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"(Linz v. The Police Department of the City of New York, Supreme Court, New York County, NYLJ, December 17, 2001).

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 beyond the approximate date of less than twenty business days given in its acknowledgement, if it acknowledges that a request has been received, but has failed to grant access by the specific date given beyond twenty business days, or if the specific date given is unreasonable, a request may be considered to have been constructively denied [see §89(4)(a)]. In such a circumstance, the denial may be appealed in accordance with §89(4)(a), which 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."

Section 89(4)(b) was also amended, and it states that a failure to determine an appeal within ten business days of the receipt of an appeal constitutes a denial of the appeal. In that circumstance, 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.

We hope this helps to clarify your understanding of the Freedom of Information Law.

Sincerely,

Camille S. Jobin-Davis
Assistant Director
CSJ:jm
cc: James E. Eisel, Chairman
Board of Supervisor
Richard Spinney, Esq.