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FOIL-AO-16152

 

September 12, 2006

 

Mr. Andrew Coe
170 Hicks Street, Apt. 3
Brooklyn, NY 11201

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 Mr. Coe:

I have received your latest correspondence involving your efforts in gaining access to records of the New York City Police Department under the Freedom of Information Law.

The chronology of your efforts is significant, for most recently, in a letter dated August 15, a request was denied on the ground that it is “duplicative of your previous request” and because it “does not reasonably describe a specific document.” On April 30, 2005, you submitted a request for records pertaining to Raymond Marquez, “particularly those related to the old Gambling Squad and the present-day Vice Squad”. You also expressed the belief that the Gambling Squad records from the 1960's were in possession of a former assistant district attorney whom you named. In a response dated May 16, 2005, you were informed that the request was too broad and that you could appeal to Mr. Jonathan David. You appealed in a letter of May 19, 2005 and provided additional detail, including the dates and nature of charges brought against Mr. Marquez. In his response to the appeal dated August 4, Mr. David denied the appeal because the records access officer, in his view, “correctly determined that your request was too broad in that it failed to describe a specific document.” However, because you provided additional information, he wrote that “your appeal letter is deemed a new request, and is referred to the Records Access Officer for consideration.” He also asked that you “deem this letter as an acknowledgment as required under Public Officers Law §89(3)” (emphasis his), and indicated that a new determination would be rendered by the records access officer within ninety days.

In a letter of January 9, 2006, more than five months after the acknowledgment by Mr. David, you received a letter from Sgt. James Russo stating that 15 pages of documentation had been located, that redactions had been made, and that the documentation would be mailed to you upon receipt of payment in the amount of $3.75. You again appealed to Mr. David, referring to the “Department’s effective denial” of your request, referring to Mr. Marquez’ “extensive criminal history stretching back to the 1950's”, and emphasizing that he was “the target of numerous large-scale organized crime, racketeering and gambling investigations by the NYPD.” You contend that “[h]is appearance in NYPD files, including all the various gambling, vice and organized crime squad records, must run to hundreds if not thousands of pages”, rather than “a paltry 15 pages with Raymond Marquez’s name on them.” Having received no further response from Mr. David, you contacted this office, and I recommended that you resubmit your request, including whatever additional detail you could provide to enable Department staff to locate the records of your interest. You did so in a new request dated June 15.

In response to that request, Sgt. Russo wrote on July 13, 2006 as follows:

“...it appears that some of the records that you have requested may be in the possession of this department and, if so, may be disclosable under FOIL. However, before you can be granted access to specific records or portions thereof that are responsive to your request, a search for such records must be conducted. If records responsive to your request are located, such records must be reviewed to assess the applicability of any particular exemptions from disclosure set forth in FOIL.

“Due to the large volume of pending FOIL requests, which are processed in the order in which they are received, and due to the fact that NYPD records are kept in many offices located in five counties, it is anticipated that your request will require more than twenty days. It is anticipated that a determination will be reached on 10/23/2006.”

Notwithstanding that response, Sgt. Russo wrote to you again on August 15, denying your request on the ground that it is “duplicative” of a previous request and informed you of your right to appeal to Mr. David.

In this regard, I offer the following comments.

First, as advised in an advisory opinion addressed to you on June 27, 2006, the Department’s mantra-like response that your request is “too broad in nature and does not describe a specific document”, is, in my view, inconsistent with the direction provided by the state’s highest court. Rather than reiterating the analysis offered in that opinion, copies of which were sent to Mr. David and the Department’s records access officer, I would merely suggest, in brief, that the Freedom of Information Law has not since 1977 required an applicant to request a “specific document”. In the words of the Court of Appeals, an agency may reject a request on the ground that it fails to “reasonably describe” the records only when “the descriptions were insufficient for purposes of locating and identifying the records sought” the descriptions were insufficient for purposes of locating and identifying the records sought” [Konigsberg v. Coughlin, 68 NY2d 245, 249 (1986)]. In consideration of the detail that you offered, including the dates and nature of charges, as well descriptions of Mr. Marquez’ activities and the units within the Department that were involved with them, it would appear that many more than 15 pages of material can be found based on the terms of your request.

Second, while your most recent request may be “duplicative” in many respects of your previous request, it appears that you submitted that request due to the Department’s failure to locate records or respond in a timely manner to both your requests and appeals. In short, I believe that you have strenuously attempted to provide the Department with opportunities to give appropriate effect to the Freedom of Information Law. To reject your request as duplicative when the Department itself has failed to comply with its obligation to respond in a timely manner to requests and appeals is, in my opinion and in consideration of the facts, unreasonable.

I note that amendments to the Freedom of Information Law that became effective on May 3, 2005, sought to require that agencies respond to requests in a timely and effective manner. Specifically, §89(3) 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...”

The new language added to that provision states 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. However, 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, 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. From my perspective, 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." 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 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.

In an effort to encourage compliance with law and a substantive response to your request, copies of this opinion will be forwarded to Mr. David and Sgt. Russo.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Jonathan David
Sgt. James Russo