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FOIL-AO-17762

                                                                                                August 19, 2009

 

 

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

            We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to a request for records made to the Village of Rockville Centre.  Specifically, you requested to inspect the retainer agreement between the Village’s insurance carrier and a law firm representing the Village with respect to a particular issue, and to receive copies of certain correspondence regarding “Signature Place”.  In response, the Village indicated that it does not maintain the retainer agreement, and offered to locate the requested correspondence upon receipt of payment for an employee to search “in excess of 25,000 pages”.  In this regard, we offer the following comments.

            First, the Freedom of Information Law is applicable to all agency records, and §86(4) of that statute defines the term "record" expansively to include:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever
including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms,
computer tapes or discs, rules, regulations or codes."

            Typically, a retainer agreement between an agency and an attorney would be a record subject to the Freedom of Information Law.  Here, however, the retainer agreement or perhaps an employment contract exists between the Village’s insurance carrier and an attorney.  In our experience, an insurance policy maintained by a municipality may require that the insurance carrier provide legal representation in certain situations, but would not dictate the terms of compensation for such representation. 

            If this assumption is correct, in our opinion, the compensation agreement between the insurance carrier and the attorney would not be a record subject to the Freedom of Information Law, as it would not be created or produced for an agency pursuant to the terms of a contractual arrangement.  Similar to records of compensation rendered to employees of a contractor to an agency, unless there is an agreement whereby the contractor agrees to report that information in writing, those records, in our opinion, would not be “kept” or “held” for the agency.  

            With respect to fees for copies of records, in its response, the Village indicated that it maintains in excess of 25,000 pages of documents related to “Signature Place”.  The Village estimated that half of those documents are “Village paperwork” and that it would require “eight to ten days of work for one person” to locate the records that you have requested.  In our opinion, such review is not mandated by the Freedom of Information Law unless the records are maintained or indexed in a fashion that permits the Village to locate and identify correspondence with reasonable effort.

            Although the Freedom of Information Law as initially enacted required that an applicant seek "identifiable" records, since 1978 it has required that an applicant "reasonably describe" the records sought. Moreover, it has been held by the Court of Appeals, the state’s highest 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 our view, whether a request reasonably describes the records sought, as suggested by the Court of Appeals, 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 we are unfamiliar with the record keeping systems of the Village, to the extent that the records sought can be located with reasonable effort, we believe that the request would have met the requirement of reasonably describing the records. In Ruberti, Girvin & Ferlazzo v. Division of State Police [218 AD2d 494, 641 NYS2d 411 (1996)], one element of the decision pertained to a request for a certain group of personnel records, and the agency argued that it was not required to search its files for those requested "because such records do not exist in a 'central file' and, further, that FOIL does not require that it review every litigation or personnel file in search of such information" (id., 415). Nevertheless, citing Konigsberg, the court determined that:

"Although the record before this court contains conflicting proof regarding the nature of the files actually maintained by respondent in this regard, an agency seeking to avoid disclosure cannot, as respondent essentially has done here, evade the broad disclosure provisions FOIL by merely asserting that compliance could potentially require the review of hundreds of records" (id.).

            Accordingly, insofar as Village staff can locate the records of your interest with a reasonable effort analogous to that described above, it would be obliged to do so. As indicated in Konigsberg, if it can be established that the Village maintains its records in a manner that renders its staff unable to locate and identify the records with reasonable effort, the request would have failed to meet the standard of reasonably describing the records.  Based on the Village’s description of the time it would take a person to locate the records that you have requested, it appears that such efforts would be unreasonable.  There may be some records, however, that can be identified with little or no effort, in which case, they would be required to be reviewed by the Village in order to determine the extent to which they must be made available pursuant to the Freedom of Information Law.

            With respect to the Village’s assertion that it has the authority to charge for time spent searching for records, we note that the specific language of the Freedom of Information Law and the regulations promulgated by the Committee on Open Government indicate that, absent statutory authority, an agency may charge fees only for the reproduction of records. Amendments to the law enacted in 2008 allow an agency to charge for employee time only when spent in preparation of electronic records (see §87[1][b][ii]).  Section 87(1)(b) of the Freedom of Information Law states:

"Each agency shall promulgate rules and regulations in conformance with this article...and pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article, pertaining to the availability of records and procedures to be followed, including, but not limited to...

“iii. the fees for copies of records which shall not exceed twenty-five cents per photocopy not in excess of nine inches by fourteen inches, or the actual cost of reproducing any other record in accordance with the provisions of paragraph (c) of this subdivision, except when a different fee is otherwise prescribed by statute.”

            The regulations promulgated by the Committee state in relevant part that:

"Except when a different fee is otherwise prescribed by statute:

(a) An agency shall not charge a fee for the following:

(1) inspection of records for which no redaction is permitted;
(2) search for, administrative costs of, or employee time to prepare photocopies of records;
(3) review of the content of requested records to determine the extent to which records must be disclosed or may be withheld; or
(4) any certification required pursuant to this Part.”  (21 NYCRR section 1401.8).

            As such, the Committee's regulations specify that no fee may be charged for personnel time to search for records or to determine which records or portions therefore must be disclosed, except as otherwise prescribed by statute.

            Lastly, although compliance with the Freedom of Information Law involves the use of public employees' time, the Court of Appeals has found that the law is not intended to be given effect "on a cost-accounting basis", but rather 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" [Doolan v. BOCES, 48 NY 2d 341, 347 (1979)].

            On behalf of the Committee on Open Government we hope that this is helpful to you.

                                                                                    Sincerely,

 

                                                                                    Camille S. Jobin-Davis
                                                                                    Assistant Director                                 CSJ:jm                                                                                                                                                                                                      cc: A. Thomas Levin, Village Attorney