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FOIL-AO-18159

                                                                                                June 22, 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 facts presented in your correspondence.

Dear

            We have received your letter in which you requested an advisory opinion concerning the Freedom of Information Law.

            In your letter, you described and submitted copies of numerous Freedom of Information Law requests made to the New York City Department of Education, which led to responses indicating that more time was needed to respond based on the volume and complexity of the requests. Moreover, the Department has asked repeatedly for postponements concerning the requests.

            In response to one of your multi-faceted requests, the Department indicated that it did not “compile or track” the information sought in two elements of the request. On appeal, the Department indicated that because “no single Department of Education tracks [unit] or compiles the requested information,” [the] “Department of Education would be forced to reprogram its computer system in order to perform an electric search for the requested data,” and upheld the denial.

           To begin, 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 Law and Rules.

            Whether response times are reasonable in your case is difficult to determine due to the volume and detail of the requests you made.  It is not known how many requests remain pending, or whether they would involve the extraction of multiple data elements from distinct databases.  It is likely, therefore, that it would involve some time to determine whether access could be obtained with reasonable effort.  While it seems that six months is sufficient time for the Department to ascertain the state of its databases in relation to your requests, such a determination should include consideration of the volume and complexity of previous requests.  At the very least, if the requests that you submitted to our office are the only requests pending (submitted in August of 2009), we would expect the Department to begin responding with cost estimates by the date of the issuance of this letter.
Next, in regard to the request that the Department denied, by way of historical background, when the Freedom of Information Law was initially enacted in 1974, it required that an applicant request "identifiable" records. Therefore, if an applicant could not name the record sought or "identify" it with particularity, that person could not meet the standard of requesting identifiable records. In an effort to enhance its purposes, when the Freedom of Information Law was revised, the standard for requesting records was altered. Since 1978, §89(3) has stated that an applicant must merely "reasonably describe" the records sought. We point out that it has been held by the Court of Appeals that to deny a request on the ground that it fails to reasonably describe the 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).


            In our view, whether a request reasonably describes the records sought, as suggested by the Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing or record-keeping system. In Konigsberg, it appears that the agency was able to locate the records on the basis of an inmate's name and identification number.


            Additionally, the Freedom of Information Law as amended in relation to information that is maintained electronically states in § 89(3)(a) that: “When an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so.” We believe that this new provision and others are based on a recognition that records and data are now frequently maintained in electronic storage systems, and that to give effect to the intent of the Freedom of Information Law, government agencies are required, when they have the ability to do so, “reasonably” or “with reasonable effort,” to disclose information in a manner consistent with developments in information technology.

           In response to your concern that the Department consolidated your requests, we note that the Department responded to twenty separate Freedom of Information requests submitted during one 5-business day period via one letter dated August 29, 2009.  Insofar as the data sought can be extracted or generated with reasonable effort, we believe that the Department is obliged to do so. On the other hand, to the extent that your request involves material that cannot be generated, except by developing a new method of doing so, it is our view that the Department is not required to engage in an effort of that nature. 

           Finally, in light of the scope of your requests, and presumably the effort that has already been carried out by the Department, it may enhance the Department’s ability to respond in a more timely fashion if you were to prioritize your requests. To the extent that some records may be more readily available than others, or perhaps available now, it would be reasonable in our view for the Department to disclose them without delay.

           We hope we have been of assistance.


                                                                                                Sincerely,

 

                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director

CSJ:JBG:jm

cc: Michael Best, General Counsel
Joseph Baranello, Records Access Officer