December 21, 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.
I have received your letters and copies of a variety of correspondence relating to your requests made pursuant to the Freedom of Information Law to the Town of North Castle and the Hartsdale Fire District. It is clear that some of the records sought have been made available to you and/or your attorney; it is unclear, however, which records might have been withheld. Nevertheless, based on a review of the materials, I offer the following comments.
Since you asked that this office “instruct” or “compel” an agency to disclose records or otherwise comply with law, it is noted that the Committee on Open Government is authorized to provide advice and opinions pertaining to the Freedom of Information Law. Neither the Committee nor its staff is empowered to compel an agency to grant or deny access to records or enforce the law.
I point out, too, that the title of the law may be somewhat misleading, for it is not a vehicle that requires that government agencies provide information per se or that it must supply answers to questions. Rather, the Freedom of Information Law pertains to existing records, and §89(3)(a) states in relevant part that an agency is not required to create a record in response to a request for information. If there is no record, for example, indicating “where” records might have been reviewed, an agency is not required to prepare a record containing that information on your behalf. Similarly, since you requested an “inventory”, if no such record exists, an agency would not be required to create an inventory.
One of the issues may involve a different aspect of §89(3)(a), the portion indicating that an applicant must “reasonably describe” the records sought. The Court of Appeals, the state’s highest court, has held by the 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 my view, whether a request reasonably describes the records sought, as suggested by the Court, 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 I am unfamiliar with the recordkeeping systems of the Town or Fire District, to the extent that records sought can be located with reasonable effort, I believe that a request meets the requirement reasonably describing the records. On the other hand, if records are not maintained in a manner that permits their retrieval except by reviewing perhaps hundreds or perhaps thousands of records individually in an effort to locate those falling within the scope of the request, to that extent, a request would not in my opinion meet the standard of reasonably describing the records.
With respect to your ability to photograph records,§87(2) of the Freedom of Information Law states that records are available for inspection and copying. There is nothing in that statute that references the ability to photograph records or, contrarily, imposes a prohibition from so doing.
From my perspective, the issue involves whether a denial of a request to photograph records is reasonable. In a case involving the use of personal photocopier, and it was held that municipality could prohibit the use of one’s photocopier if its presence or use, due to the size of the device or the municipal office, is disruptive [ see Murtha v. Leonard, 60 NYS 2d 101 (1994), 210 AD 2d 411]. Due to the disruption caused in that instance, the prohibition was found to be reasonable. However, if the use of a copier or camera, for example, is not disruptive, I do not believe that a prohibition concerning the use of such a device would be reasonable or consistent with law.
In my opinion, the use of one’s own camera would not ordinarily be disruptive, and if that is so in the situation that you described, the prohibition by the agency in my view would have been unreasonable. Further, I note that the use of cameras to copy government records has become common and, in some instances, mutually beneficial and recommended. For instance, when an agency does not have a photocopier that can accommodate oversized records, such as maps, the use of a digital camera has served the interests of both the agency and the public.
Next, I am unaware of whether of whether the Fire District’s Board of Commissioners has regular business hours. If it does so, it is required to accept records and permit inspection of records during those hours. By way of background, §89(1)(b)(iii) of the Freedom of Information Law requires the Committee to promulgate regulations concerning the procedural implementation of the Law (see 21 NYCRR Part 1401). In turn, §87(1) requires agencies to adopt rules and regulations consistent with the Law and the Committee's regulations.
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, 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 1401.4 of the regulations, entitled "Hours for public inspection", states that:
"(a) Each agency shall accept requests for public access to records and produce records during all hours they are regularly open for business."
Relevant to the matter and the foregoing is a decision rendered by the Appellate Division, Second Department. Among the issues was the validity of a limitation regarding the time permitted to inspect records established by a village pursuant to regulation. The Court held that the village was required to enable the public to inspect records during its regular business hours, stating that:
"...to the extent that Regulation 6 has been interpreted as permitting the Village Clerk to limit the hours during which public documents can be inspected to a period of time less than the business hours of the Clerk's office, it is violative of the Freedom of Information Law..." [Murtha v. Leonard, 620 NYS 2d 101 (1994), 210 AD 2d 411].
In your latest letter to this office you indicated that you asked that the District “provide a listing of documents withheld and redacted...” In this regard, there is nothing in the Freedom of Information Law or judicial decision construing that statute that would require that a denial at the agency level identify every record withheld in whole or in part or include a description of the reason for a denial of access in each instance. Such a requirement has been imposed under the federal Freedom of Information Act, which may involve the preparation of a so-called "Vaughn index" [see Vaughn v. Rosen, 484 F.2D 820 (1973)]. Such an index provides an analysis of documents withheld by an agency as a means of justifying a denial and insuring that the burden of proof remains on the agency. Again, I am unaware of any decision involving the New York Freedom of Information Law that requires the preparation of a similar index.
Further, one decision suggests the preparation of that kind of analysis might in some instances subvert the purpose for which exemptions are claimed. In that decision, an inmate requested records referring to him as a member of organized crime or an escape risk. In affirming a denial by a lower court, the Appellate Division found that:
"All of these documents were inter-agency or intra-agency materials exempted under Public Officers Law section 87(2)(g) and some were materials the disclosure of which could endanger the lives or safety of certain individuals, and thus were exempted under Public Officers Law section 87(2)(f). The failure of the respondents and the Supreme Court, Westchester County, to disclose the underlying facts contained in these documents so as to establish that they did not fall 'squarely within the ambit of [the] statutory exemptions' (Matter of Farbman & Sons v. New York City Health and Hosps. Corp., 62 NY 2d 75, 83; Matter of Fink v. Lefkowitz, 47 NY 2d 567, 571), did not constitute error. To make such disclosure would effectively subvert the purpose of these statutory exemptions which is to preserve the confidentiality of this information" [Nalo v. Sullivan, 125 AD 2d 311, 312 (1987)].
Lastly, 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 acknowledgment 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, which shall be reasonable in consideration of the circumstanced relating to the request and shall not exceed twenty business days from the date of such acknowledgment, except in unusual circumstances. In the event that such unusual circumstances prevent the grant or denial of the request within twenty business days, the agency shall state in writing both the reason for the inability to do so and a date certain within a reasonable time, based on such unusual circumstances, when the request shall be granted or denied.”
If neither a response to a request nor an acknowledgment 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 acknowledgment, 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.
I hope that I have been of assistance.
Robert J. Freeman
cc: Commissioner Fred Overing
Sharon A. Spagnoli
Hon. Ann Leber