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FOIL-AO-17938

 

 

                                                                                                December 17, 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 regarding application of the Freedom of Information Law to records requested from the Office of Mental Health, and a sequence of events that occurred in conjunction with a series of hearings at which your client contested a license revocation.  We offer the following comments in an effort to provide guidance with respect to the issues that you raised.

            In the judicial decision cited by OMH 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).

            While reasonable minds may differ, after consideration of the facts that you described, it is our opinion that the length of time taken by OMH to respond to your request was unreasonable, based on three separate observations.

            First, we note that your request encompassed a large volume of materials; however, only in response to your appeal did OMH indicate that your request did not “reasonably describe” records maintained. 

            Although the Freedom of Information Law as initially enacted required that an applicant must seek "identifiable" records, since 1978 it has merely required that an applicant "reasonably describe" the records sought.  Moreover, it has been held by the Court of Appeals that to deny a request on the ground that it fails to reasonably describe 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).

            While we are unfamiliar with the record keeping systems of OMH, we note that on April 21, the day after you submitted your request, you were informed that OMH “would like to clarify the following: do you have perimeters for document dates and do you want copies of records you have already received through the discovery process?”  You were not informed that OMH would deny or hold your request in abeyance until these questions were answered.  Accordingly, it is unreasonable, in our opinion, for OMH to assert that as of April 21, 2009 “OMH was no longer limited to twenty days for a response because the response could not be formulated without further description of the records being sought”  (September 17 OMH appeal response).  In our opinion, it is the agency’s responsibility to clearly indicate whether and when it has denied a request for this reason.

            Second, conflicts between statements made by OMH during the process, and OMH’s later response to your appeal, in our opinion, provide an indication of an unreasonable delay.

            While counsel for OMH may have tried to remain uninvolved in her agency’s response to your request (June 24, 2009 Hearing Transcript, pages 6468, 6471), at a June 24 hearing, counsel stated:

“What I said to Mr. Trueman was that, in fact, we had gathered the documents, that there were numerous documents, in fact, thousands of documents.  And one of [the] things that we were doing was we were going to be tabulating the pages.  We wanted to give his client an opportunity to understand how much – how much money it would be, given the volume.  The other thing that I said to him was that when settlement negotiations began, my folks asked me what do to about it.  And just this week, I said hold it.  Not before that, but just this week I said hold it”  (June 24 Hearing, p. 6467.)

Later,

“I can show an e-mail, if I need to, which was generated just this week.  I believe it might have been – it was either this week or last Thursday, when I thought settlement negotiations were in fact proceeding, that they should hold off until we could see whether or not he still needed the documents”  (June 24 Hearing Transcript, p. 6468.)

And then further,

“And, your Honor, we have, in fact, accumulated much of the documents, and the only question was who was going to go through them before we send them...” (June 24 Hearing Transcript, pp. 6470-6471.)

            In response to the appeal, OMH indicated that despite counsel’s direction to “hold it”, the agency “had not stopped work on the FOIL response.” 

            On June 26, OMH wrote as follows:

“you have revised your original request and decided to have it include all documents with the exception of any documents submitted by SLS to OMH or documents sent from, or supplied by, OMH to SLS.  While your new request should shorten the time needed for reproduction, it has increased the amount of time needed to filter out what is responsive.  I anticipate it will take weeks to complete this process since we have 16 boxes of material to review.”

            Yet in response to your appeal, the agency wrote that it “did not say the review would take ‘weeks’ because you had revised your request… but because as the review was progressing, it had become evident that both the volume and complexity involved would require additional time beyond July 2nd.” 

            Accordingly, because the explanations provided later, on appeal, are in direct conflict with the responses that you were given on June 24 and June 26, in our opinion, the agency failed to articulate sufficient grounds for further delay, and its actions were not in keeping with the time limits required by law.

            Our third observation is that the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests.  Specifically, '89(3)(a) 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..."

            New language was added to that provision in 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.  However, 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, 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.

            While you may have misunderstood the agency’s intention to respond to your request by July 2nd, you requested assistance in expediting your request on a number of occasions (April 20, June 24, June 26, June 29, July 20, July 22), your “revision” of the request in June was made upon clarification that it was in an effort to expedite the response, you requested clarification of the date by which the agency would respond (June 26), and most importantly, the agency failed to provide you with a date specific by which it would respond to your request.  In our opinion, you had a right to appeal a constructive denial of access on June 26 when the agency first communicated that “it would take weeks to complete this process”. The agency, even when afforded a second opportunity to indicate a date specific as required by §89(3)(a) (July 17), again failed to articulate a date by which it would respond.  This, in our opinion, is further evidence of the agency’s failure to reasonably comply with the time limits required by law.

            Lastly, when records are accessible under the Freedom of Information Law, it has been held that they should be made equally available to any person, regardless of one's status, interest or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals, the State's highest court, has held that:

"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on government decision-making, its ambit is not confined to records actually used in the decision-making process. (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request" [Farbman v. New York City Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].

            Farbman pertained to a situation in which a person involved in litigation against an agency requested records from that agency under the Freedom of Information Law. In brief, it was found that one's status as a litigant had no effect upon that person's right as a member of the public when using the Freedom of Information Law, irrespective of the intended use of the records.  While there may be no discovery in an administrative proceeding before OMH (July 22, 2009 Hearing Transcript, pp. 6940, 6942), and while the Freedom of Information Law does not require an agency to respond to requests based on time frames determined by the applicant, in our opinion, the Court of Appeals has ruled that an applicant involved in litigation against an agency should be provided no fewer rights of access to records than the public.

            In sum, it is our opinion, based on the information you submitted, that the agency failed to reasonably comply with the time limits required by law.

            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: M. Jill Daniels
Pamela Tindall-O’Brien