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FOIL-AO-16177

October 5, 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

I have received your correspondence relating to a request made under the Freedom of Information Law to the New York City Department of Education that does not, in my opinion, "reasonable describe" the records as required by §89(3) of that statute.

The request involved:

"...all files, records (including electronic or magnetic), books, and papers located in Virginia Caputo’s inner office and all files, records (including electronic or magnetic), books, and papers located in Virginia Caputo’s outer office(s), or any rooms or hallways of the Office of Appeals and Reviews under her general supervision..."

In this regard, in Konigsberg v. Coughlin [68 NY2d 245 (1986)], the Court of Appeals, the state’s highest court, held that a request reasonably describes the record sought when agency staff has the ability, with reasonable effort, to locate and identify the records sought. In my opinion, in consideration of the nature of your request, staff cannot "identify" the records of your interest. If, for instance, numerous filing cabinets are located in the offices of or under the general supervision of a particular employee, I do not believe that a request for all records contained in those filing cabinets or the employee’s inner and outer offices would identify records in any meaningful way or, therefore, reasonably describe records.

In considering a request that may have been similar, the court upheld the agency's denial, stating that:

"Petitioner's actual demand transcends a normal or routine request by a taxpayer. It violates individual privacy interests of thousands of persons...and would bring in its wake an enormous administrative burden that would interfere with the day-to-day operations of an already heavily burdened bureaucracy" (Fisher & Fisher v. Davison, Supreme Court, New York Cty., Oct. 6, 1988).

You also sought clarification concerning the time within which the Department must respond to requests. In this regard, 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. 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.

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.

Lastly, you asked why this office "does not take the NYC Office of Legal Services [of the Department of Education] to task about their actions." In short, the Committee on Open Government has the authority to provide advice and guidance concerning the Freedom of Information Law. It is not empowered to enforce that statute or otherwise compel an agency to grant or deny access to records.

I hope that the foregoing serves to clarify your understanding.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Michael Best
Susan W. Holtzman