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FOIL-AO-17945

 

 

                                                                                               
December 29, 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 Department of Insurance.  Please note that while the Committee on Open Government is authorized to issue advisory opinions concerning application of the Freedom of Information Law, this office has no authority to compel an entity to comply with law; only a court can determine whether there has been a “violation” of the Freedom of Information Law.  It is our hope that our opinions are educational and persuasive, and that they serve to resolve problems and promote understanding of and compliance with the law.

            Based on the information that you provided in conjunction with and subsequent to your request, we offer the following comments.

            First, 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..."

            It is noted that 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.

            The amendments clearly are intended to prohibit agencies from unnecessarily delaying disclosure.  They are not intended to permit agencies to wait until the fifth business day following the receipt of a request and then twenty additional business days to determine rights of access, unless it is reasonable to do so based upon "the circumstances of the request."  From our perspective, every law must be implemented in a manner that gives reasonable effect to its intent, and we point out that in its statement of legislative intent, §84 of the Freedom of Information Law states that "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible."  Therefore, when records are clearly available to the public under the Freedom of Information Law, or if they are readily retrievable, there may be no basis for a delay in disclosure.  As the Court of Appeals, the state's highest court, has asserted:

"...the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom.  By their very nature such objectives cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception.  The phrase 'public accountability wherever and whenever feasible' therefore merely punctuates with explicitness what in any event is implicit" [Westchester News v. Kimball, 50 NY2d 575, 579 (1980)].

            In a judicial decision 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).

            If neither a response to a request nor an acknowledgement 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 acknowledgement, 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.

            Further, and with respect to fees charged for paper copies of records, we note that the Freedom of Information Law permits an agency to charge a maximum of $.25 per page up to 9 x 14 inches (§87([1][b][iii]).  And, as you are aware, the Freedom of Information Law was amended in 2006 and now states in relevant part that: “All entities shall, provided such entity has reasonable means available, accept requests for records submitted in the form of electronic mail and shall respond to such requests by electronic mail...” Based on that provision, agencies are required to transmit requested records via email when they reasonably have the ability to do so.

            We note that the Department has agreed to transmit a list of complaints to you via email or on a disk, rather than requiring you to pay $36.  The basis for the $36 fee was not clarified, despite your request for an explanation based upon our recommendation.  Under the law, when a record that you have requested consists of 144 pages, an agency would have the authority to require payment of $36 ($.25 x 144 pages), and we agree with your contention and the Department’s acknowledgment that when an agency provides a record via email, there is no authority to charge for photocopies.  Further, when an electronic file cannot be reasonably conveyed via email, the law allows an agency to charge the actual cost of reproducing the record (§87[1][b]), which in this case would include the cost of the disk on which the file is stored and transmitted.

            With respect to the agency’s indication that it routinely retains complaint files for two (2) calendar years after closing cases, we note that the Freedom of Information Law pertains to existing records.  When an agency indicates that it does not maintain or cannot locate a record, an applicant for the record may seek a certification to that effect. Section 89(3) of the Freedom of Information Law provides in part that, in such a situation, on request, an agency "shall certify that it does not have possession of such record or that such record cannot be found after diligent search." 

            It is emphasized that government agencies and their employees routinely destroy records for sound reasons, in keeping with the law, yet they are not permitted to destroy records at will.  Specifically, §57.05 of the Arts and Cultural Affairs Law provides that the Commissioner of Education is empowered:

"[t]o authorize the disposal or destruction of state records including books, papers, maps, photographs, microphotographs or other documentary materials made, acquired or received by any agency.  At least forty days prior to the proposed disposal or destruction of such records, the commissioner of education shall deliver a list of the records to be disposed of or destroyed to the attorney general, the comptroller and the state agency that transferred such records.  No state records listed therein shall be destroyed if within thirty days after receipt of such list the attorney general, comptroller, or the agency that transferred such records shall notify the commissioner that in his opinion such state records should not be destroyed."

In view of the foregoing, records cannot be destroyed without the consent of the Commissioner of Education, and state agencies cannot destroy or dispose of records until the minimum period for the retention of the records has been reached. The provisions relating to the retention and disposal of records are carried out by a unit of the State Education Department, the State Archives, which has promulgated a retention schedule applicable to state agencies.  It is our understanding, based on that retention schedule (http://www.archives.nysed.gov/ a/records/mr_pub_genschedule.pdf) that records that are the subject of a FOIL request are required to be maintained until the FOIL request and appeal period has expired, plus an additional six months.

            Finally, the Department has indicated that it will “hold open your FOIL file for 60 days from the date of this email to allow your review of this lengthy list of complaints.”  From our perspective, every law must be implemented in a manner that gives reasonable effect to its intent, and we reiterate out that in its statement of legislative intent, §84 of the Freedom of Information Law states that "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible."  In our opinion, this offer is reasonable and in keeping with the spirit and intent of the law.  We also believe that should you face unforeseen circumstances and require an extension of the 60 day window, a written request to the Department would be a reasonable approach to inform the Department and secure additional time for review.
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:  Paul Orkwis