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FOIL-AO-17768

 

                                                                                                August 20, 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, and a copy of the “FOIL Request Procedures” of the Town of Plattsburgh, adopted by resolution on June 15, 2009.  You requested that we review the Procedures, particularly with respect to provisions that may be contrary to the Freedom of Information Law.  In an effort to provide guidance and support with respect to compliance with the Freedom of Information Law, we offer the following comments.

            First, §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 town board, to adopt rules and regulations consistent those promulgated by the Committee and with the Freedom of Information Law.  To enhance agencies’ ability to adopt proper procedures, we offer model regulations online, for consideration by agencies, such as the Town (http://www.dos.ny.gov/coog/modelregs.html).

            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 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 from doing so.”

            As such, the Town Board has the duty to promulgate rules and ensure compliance.

            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...

(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...”

            Based on provisions quoted above, the Town is required to appoint a records access officer who must "coordinate" the agency's response to requests.  Officials and employees who in the past have been authorized to grant access to records should be permitted to continue to do so.

            In the great majority of towns, the town clerk is the records access officer. By statute, the clerk is the legal custodian of all town records (see Town Law, §30[1]) and the records management officer (see Arts and Cultural Affairs Law, §57.19). If the clerk is the records access officer, it is his/her responsibility to coordinate the Town’s response to requests.  Further, if a particular employee or official of the town has not been designated as the records access officer by the Town Board, we do not believe that person would have the authority to deny access to records or portions thereof.

            Second, we note that portions of the Procedures set forth sections of the Freedom of Information Law verbatim.  Therefore, if that statute is amended, the Procedures will require amendment also.  Similarly, to the extent that portions of the Procedures contain verbatim descriptions of recent changes to the law on our website, they would require amendment so as not to result in confusion should the statute be modified.

            Third, we emphasize that the exceptions to the Freedom of Information Law are discretionary.  Unless there is a statute, a state or federal statute prohibiting disclosure, the Town has the discretionary authority to deny access.  We would suggest reconsideration of directives to prohibit access in order that the Town, in its discretion, may choose to disclose certain information on occasion.

            Further, the Freedom of Information Law was recently amended to permit an agency, upon receipt of a request for names and addresses, to require submission of a certification that such list would not be used for solicitation or fund-raising purposes (see §89[3][a]).  The amended language, combined with existing language regarding the disclosure of addresses that would result in an unwarranted invasion of personal privacy contained in §89(2)(b), codifies an agency’s discretionary authority to require an applicant to certify that a list of names and residential addresses will not be used for solicitation or fund-raising purposes prior to disclosure.  The language contained in the Procedures states that a letter would accompany any request for any list of names and addresses.  Many lists of names and addresses, however, are required to be made public, including a list of the names and public office addresses of all employees and officials of the Town; a list of names and business addresses, the assessment roll, etc.  For related advisory opinions, please see those located on our website under “P” for “Privacy – List of Names and Addresses”.

            We note that there is no legal basis for limiting the number of hours that a staff member would be made available to observe an applicant inspecting records, nor is there a legal basis to charge for that employee’s time.  The Freedom of Information Law and the regulations promulgated by the Committee 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 §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.

            Similarly, it has been advised by this office and held judicially that an agency cannot limit the ability of the public to inspect records to a period less than its regular business hours.  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 is a decision rendered by the Appellate Division in which an issue 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 in part 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, 210 AD 2d 411, 620 NYS2d 101 [2nd Dept 1994]).

            Based on the foregoing, in our view, an agency cannot limit the ability to inspect records to a period less than its regular business hours.

            This is not to say, however, that a member of the public may designate the date or dates on which he or she seeks to review records. If, for instance, records will be in use by staff on a particular date or during a particular period of time, an agency would not, in our view, be required to alter its schedule or work plan. In that instance, the agency could offer a series of dates to the person seeking to inspect the records in order that he or she could choose a date suitable to both parties. Similarly, if a request involves a variety of items, while the applicant may ask that certain records be made available sooner than others, we do not believe that he or she can require an agency to make records available in a certain order.

            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 NY2d 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: Town Board