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FOIL-AO-17989

From: Freeman, Robert (DOS)
Sent: Wednesday, February 03, 2010 9:04 AM
To:

I have received your correspondence in which you wrote that a request for invoices involving a certain contractor was rejected because you did not supply the dates of the invoices. You have asked whether a rejection of a request on that basis may be proper.

In this regard, §89(3)(a) of the FOIL requires that an applicant must “reasonably describe” the records sought. In considering that standard, the Court of Appeals, the state’s highest court, has indicated that whether or the extent to which that condition is met may be dependent on the nature of an agency’s filing or recordkeeping system [see Konigsberg v. Coughlin, 68 NY2d 245 (1986)]. If, for example, invoices are kept or filed by means of the name of a vendor, and the request is made by naming the enterprise, it would likely be easy to locate the records at issue. If, however, invoices are kept chronologically, not by the name of a vendor, seeking the invoices by using the name of the vendor might involve the equivalent of searching for the needle in the haystack. According to the Court, if that is so, the agency is not required to search the haystack, even though it is known that the needles are there, somewhere. If that kind of circumstance is analogous to the facts associated with your request, the response would likely have been valid.

I note that search mechanisms in electronic information systems often permit the retrieval of records based on a variety of possibilities, i.e., the use of dates, names, products, etc. If, for example, a search can be made by means of the name of the vendor, and a computer can then locate the invoices or the dates of their submission, the agency would have the ability to locate the records. In that event, I the agency, in my view, would be required to do so.

I hope that I have been of assistance.

Robert J. Freeman
Executive Director
Committee on Open Government
Department of State
One Commerce Plaza
Suite 650
99 Washington Avenue
Albany, NY 12231
Phone: (518)474-2518
Fax: (518)474-1927
Website: www.dos.ny.gov/coog/index.html