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February 25, 1993

 

Mr. Henry F. Sobota
Scolaro, Shulman, Cohen,
Lawler & Burstein, P.C.
Attorneys and Counselors at Law
90 Presidential Plaza
Syracuse, N.Y. 13202

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,
unless otherwise indicated.

Dear Mr. Sobota:

I have received your letter of February 9, as well as the
materials attached to it. You have sought an advisory opinion
concerning rights of access to certain records maintained by the
State Division of Human Rights.

By way of background, on February 1 you wrote to the Division
and requested "[a]ll policy statements of the State Division...that
are currently in effect pertaining employment discrimination under
the Human Rights Law." For purposes of clarity, you included with
your request a sample policy statement signed by the Commission in
1989. In response to the request, you were informed by Lawrence
Kunin, General Counsel, that:

"The division is unable to comply with your
request as the information is not available on
existing computer-generated reports, and we
are not obliged to prepare special computer
reports in response to FOIL requests. Public
Officer's Law Section 89.3. You are also
further advised that this agency is not
required "to ease the research burdens of
private litigants" (D'Allesandro, et al. v.
Unemployment Insurance Board, et al., 56 A.D.
762, 763, 392 N.Y.S.2d 433 (1st Dept. 1977))."

In this regard, in an effort to learn more of the matter and
to attempt to gain insight concerning the means by which the
records sought are maintained, I contacted Mr. Kunin. He indicated
that the issuance of a policy statement, such as the sample that
you enclosed, is unusual and that such statements are not issued on
a regular or ongoing basis. He also said that the sample statement
was part of what he characterized as a "drug file", and that no
policy statements have been issued on any other subject. Mr. Kunin
referred to a fourteen volume set of materials containing a variety
of information, some of which might include what you consider to be
policy statements. That set is apparently indexed in broad,
general categories, and he said that the process of locating the
kinds of records that you requested would take weeks and would
involve a review of much of the fourteen volumes.

From my perspective, the issue in terms of the Freedom of
Information Law is whether the request "reasonably describes" the
records sought as required by §89(3) of the Law. It has been held
that a request reasonably describes the records when the agency can
locate and identify the records based on the terms of a request,
and 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)].

Although it was found in the decision cited above that the
agency could not reject the request due to its breadth, it was 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 my 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.

In the case of your request, based upon Mr. Kunin's remarks,
the Division's record-keeping system does not enable the staff to
retrieve the kinds of records in which you may be interested,
except by reviewing various aspects of the fourteen volumes page by
page. In my view, an agency would not be required to go to such
lengths in order to comply with the Freedom of Information Law.

Lastly, it is emphasized that Mr. Kunin expressed a
willingness to discuss the matter with you and suggested that you
might want to contact him directly. He can be reached at (212)
870-8667.

I regret that I cannot be of greater assistance. Should any
further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm
cc: Lawrence Kunin, General Counsel