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FOIL-AO-16877

 

                                                                                                November 26, 2007

 

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.

Dear

            We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to requests made to the New York City Police Department. In our view, your straightforward request to the Department unnecessarily resulted in an incomplete answer to your request for two records, and reflects the Department’s repeated failures to comply with the time limits required by law.

            Your initial request, dated January 31, 2007, was for “a copy of the 911 transcript regarding a police complaint made on June 15, 2006, at approximately 2:20 PM by Mr. Erik Ferencz, a store manager at Duane Reade store located at 155 East 34th Street, New York, NY 10001", as well as a copy of the resulting written police report.  The Department’s response indicated that a large volume of pending FOIL requests and the many offices of the Department that maintain records prevented the Department from responding to your request before June 5, 2007. 

            On March 2, 2007, you appealed the Department’s constructive denial of access to the requested records.  On March 20, 2007, your appeal was denied as premature, and the Department determined that the approximate date by which the records would be provided to you was reasonable in light of the number of requests received by the agency, the scope of the request, and the resources available.  The Department referenced the limited availability of staff members to process requests.

            You received nothing further from the Department until, after requesting assistance from the Office of the Lt. Governor, by correspondence dated July 17, 2007, the Department sent what appears to be a computer generated summary of the 911 call for which you requested a transcript and police report.  It is a half-page “Sprint report” consisting mostly of abbreviations and numerical references, including three blacked-out references.  In its correspondence, the Department failed to explain its intention to provide the two records that you had requested, failed to provide a key to decipher the numerical references or abbreviations in the “Sprint report”, and failed to offer any explanation for providing the “Sprint report” and withholding the blacked-out material.  It is our opinion, based on this response, that the Department failed to comply with law and constructively denied access to the requested records, as further explained below.

            By correspondence dated August 14, 2007 you appealed the denial of access to the two requested records based on your understanding of the time limits required by law, the Department’s failure to explain why it provided the “Sprint report” without a key or description of the codes referenced in the report, and its failure to deny or grant access in writing to the two records you had requested.

            By correspondence dated September 14, 2007, the Department indicated that because the Department is only obligated to store recordings of 911 calls and police radio transmissions for 180 days from the date of occurrence, the tapes were automatically destroyed prior to your January 31, 2007 request.  And, finally, on September 26, 2007, in response to your appeal the Department indicated that redactions from the “Sprint report” were made based on unwarranted invasion of personal privacy, that after a diligent search, the Department was unable to locate the written police report resulting from this particular phone call, that disclosure would interfere with judicial proceedings, and that other exemptions may apply to permit the Department to withhold the written report.  These explanations were provided almost eight months after your request.

            In this regard, we offer the following comments.

            First, 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. 

            In our opinion, the Department failed to provide access to the requested records, and in this case yo deny access within a reasonable time,  as required by the Freedom of Information Law.  The Department indicated that it would take approximately four months to locate and process a transcript of a 911 phone call and a related written report, despite the amount of identifying information provided in the request. The Department was unable to meet its self-imposed four month deadline and failed to provide notice or an explanation of any basis for further delay.  And finally, only upon appeal did the Department indicate the basis for denying access to the requested records.

            Although we have no information about the manner in which the Department’s records are organized, indexed or stored, in our opinion, it is unlikely that  almost eight months would be necessary to determine that tape recordings were destroyed in the normal course of business, except, perhaps, if inadequate personnel were dedicated to responding to such requests.  In terms of its philosophy and intent, the Freedom of Information Law is intended 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.

            Further, and by way of background, §89(1) of the Freedom of Information Law requires the Committee on Open Government to promulgate regulations concerning the procedural implementation of that statute (21 NYCRR Part 1401).  In turn, §87(1) requires the governing body of a public corporation (i.e., a city, town or village, etc.) to adopt rules and regulations consistent with those promulgated by the Committee and with the Freedom of Information Law.  Section 1401.2 of the regulations provides in relevant part that:

“(a) The governing body of a public corporation and the head of an executive agency or governing body of other agencies shall be responsible for insuring compliance with the regulations herein, and shall designate one or more persons as records access officer by name or by specific job title and business address, and when requests are accepted via email, an email address, who shall have the duty of coordinating agency response to public requests for access to records.  The designation of one or more records access officers shall not be construed to prohibit officials who have in the past been authorized to make records or information available to the public from continuing to do so.”

            Section 1401.2 (b) of the regulations describes the duties of a records access officer and states in part that:

“The records access officer is responsible for assuring that agency personnel...

(2) Assist persons seeking records 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.

(3) 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.  

(4)   Upon locating the records, take one of the following actions:
(i)   make records promptly available for inspection; or
(ii)  deny access to the records in whole or in part and explain in writing the reasons therefor.

(5)   Upon request for copies of records:
(i)    make a copy available upon payment or offer to pay established  fees, if any; or
(ii)  permit the requester to copy those records...”

            In short, the records access officer must "coordinate" an agency's response to requests.  Frequently, the records access officer is an agency officer or employee who has familiarity with an agency’s records.  For example, the town clerk is designated as records access officer in the great majority of towns, for he or she, by law, is also the records management officer and the custodian of town records. 

            Finally, when a key or a code is required in order to decipher the contents of a record, it would be unreasonable, in our opinion, for the agency to provide access to the record but deny access to the key, and it is our opinion that such a key or code must be disclosed.  Section 87(2)(g) permits an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i.  statistical or factual tabulations or data;

ii.  instructions to staff that affect the public;

iii.  final agency policy or determinations; or

iv.  external audits, including but not limited to audits performed by the comptroller and the federal government..."

            It is noted that the language quoted above contains what in effect is a double negative.  While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted.  Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.  A key or code would appear to consist of factual information that must be disclosed.

            In an effort to enhance understanding of and compliance with the Freedom of Information Law, a copy of this advisory opinion will be forwarded to those at the New York City Police Department who were involved with the processing of your request.  On behalf of the Committee on Open Government, we hope this is helpful to you.

                                                                                                Sincerely,

 

                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director

CSJ:tt

cc:  James Russo
Jonathan David
Peter Brower