December 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 information presented in your correspondence.
I have received your letter and the materials attached to it. Please accept my apologies for the delay in response.
You referred to requests for records submitted to the Town of Brookhaven that were rejected because they were, in the words of the Assistant Town Attorney, “unreasonably described.” You were informed that you “need to be more specific as to what documents you are seeking.”
In this regard, you expressed familiarity with and in fact attached an opinion rendered by this office focusing on the requirement that a request must reasonably describe the records sought in accordance with §89(3) of the Freedom of the Information Law. That being so, it appears that it is understood that “specificity” is not necessarily the issue in meeting that standard. Rather, based on a decision rendered by the state’s highest court, the issue involves an agency’s ability to locate requested records with reasonable effort, and that in many instances the ability to do so is dependent upon the nature of an agency’s filing, record-keeping or retrieval systems [Konigsberg v. Coughlin, 68 NY2d 245 (1986)]. In the context of your requests, insofar as Town staff have the ability to locate the records of your interest with reasonable effort, I believe that they are required to do so to comply with law, for in those instances, your requests would have reasonably described the records.
It is also noted that an agency is required by regulations promulgated by the Committee on Open Government (21 NYCRR Part 1401), which have the force of law, to attempt to assist those seeking records to reasonably describe the records. Specifically, §1401.2(b)(2) requires that an agency’s records access officer:
“is responsible for assuring that agency personnel....
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 the records.”
In consideration of the foregoing, I believe that the Town’s response indicating that your request was not sufficiently specific is inadequate. In my view, based on the provision quoted above, the records access officer must ensure that Town staff provide information concerning the means by which the records of your interest are maintained or retrieved in order to enable you, if necessary, to “reasonably describe” the records as required by law.
I hope that I have been of assistance.
Robert J. Freeman
cc: Hon. Pam Betheil