March 15, 2010
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.
I have received your correspondence concerning a request made pursuant to the Freedom of Information Law, by the former town clerk, Ms. Dinah Miller. You have sought an opinion relating to her request, and I offer the following comments.
First, the Freedom of Information Law pertains to existing records, and §89(3)(a) states in part that an agency, such as the Town of Clinton, is not required to create a record in response to a request. For instance, if there is no document “showing the suspension of Michael Filion’s health insurance in 2009", there would be no obligation to create or prepare a record containing the information sought. Several aspects of the request involve records that might have been prepared as long as twenty years ago, and some of those records may no longer exist. To the extent that is so, the Freedom of Information Law would not apply. I note, too, that a request for “duties” of the former supervisor is not a request for a record, but that §29 of the Town Law is entitled “Powers and duties of supervisor” and likely includes the information of Ms. Miller’s interest.
Second and perhaps most importantly, §89(3)(a) also provides in part that an applicant must “reasonably describe” the records sought. While the volume of a request is not necessarily significant in relation to that standard, the Court of Appeals, the state’s highest court, has determined that whether or the extent to which a request “reasonably describes” records is often dependent on the nature of an agency’s filing or record keeping system [see Konigsberg v. Couglin, 68 NY2d 245 (1986)]. If a search involves the equivalent of an attempt to find the needle in the haystack, the request would not reasonably describe the records, even if it is known that the needle is somewhere within the haystack.
In the context of Ms. Miller’s request, there may be several instances in which the request might not reasonably describe the records that she has requested. If, for example, checks issued by the Town are kept chronologically, and if the portion of the request involving checks issued to health insurance providers over the course of twenty years would require a review of thousands of checks, one by one, in order to locate those falling within the scope of the request, the requirement that the request must reasonably describe the records, would not, in my opinion, have been met. If effort of that nature would be required to locate resolutions pertaining to health insurance in minutes over the course of twenty years, or highway warrants and bills covering that period of time, again, it is unlikely that the request would reasonably describe the records.
Lastly, insofar as records exist, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (k) of the Law.
The last aspect of Ms. Miller’s request involves “All documents regarding Julie Filion’s health insurance.” Here I point out that §§87(2)(b) and 89(2)(b) authorize an agency to withhold records or portions of records when disclosure would result in “an unwarranted invasion of personal privacy.” It has been advised that the fact that a unit of government pays for all or part of the health insurance of a present or former public employee as that information is contained within a record must be disclosed, but that any details regarding a claim for coverage, benefits, reimbursement or the nature of an individual’s medical issue, injury, disease or condition may be withheld to protect his/her privacy.
I hope that I have been of assistance.
Robert J. Freeman
cc: Dinah Miller