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April 6, 1993

 

 

Mr. O. Shelly
87-84 165 St. Apt. 110
Jamaica, N.Y. 11432-3541

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 Mr. Shelly:

I have received your letter of March 21. You have sought an
advisory opinion concerning issues relating to the Freedom of
Information Law, several of which pertain to the implementation of
that statute by the State Insurance Fund.

First, you described your understanding of the time
limitations with which agencies must comply when requests are made
and of judicial decisions indicating that agencies cannot deny
requests because the requests are voluminous. You asked whether
your view of those matters is correct and "[e]xactly how many
records would constitute a voluminous and burdensome request."

In this regard, §89(3) 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 when
such request will be granted or denied..."

Based upon the foregoing, if an agency acknowledges the receipt of
a request within five business days because additional time is
needed to determine rights of access and includes an estimate of
when the request will be granted or denied, so long as the estimate
is reasonable, I believe that the agency would be acting in
compliance with the Law.

With respect to what may be voluminous, I doubt that there is
any way of determining "exactly" what would be voluminous. I point
out that in a decision involving a request for thousands of
records, the court upheld the agency's denial, stating that:

"Petitioner's actual demand transcends a
normal or routine request by a taxpayer. It
violates individual privacy interests of
thousands of persons...and would bring in its
wake an enormous administrative burden that
would interfere with the day-to-day operations
of an already heavily burdened bureaucracy"
(Fisher & Fisher v. Davison, Supreme Court,
New York Cty., Oct. 6, 1988).

I am unfamiliar with the volume of records that you might have
requested. However, if the number of records is voluminous, the
points made in Fisher & Fisher would apparently be apt.

It is also noted that in some instances, whether an applicant
has "reasonably described" the records sought as required by §89(3)
may be an issue. 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
system.

Second, you referred in several instances to regulations
promulgated under the Freedom of Information Law by the State
Insurance Fund and by agencies generally and questioned their
authority or receipt of permission, for example, to adopt certain
regulations. As I understand the law, agencies do not seek
permission to promulgate regulations; rather they have the ability
to do so pursuant to some statutory grant of authority. In the
context of the issues raised in your letter, §89(1)(b)(iii) of the
Freedom of Information Law requires that the Committee on Open
Government promulgate general rules and regulations concerning the
procedural aspects of that statute, as well as fees. In turn,
§87(1) requires agencies to promulgate rules and regulations
"pursuant to such general rules and regulations as may be
promulgated by the committee on open government in conformity with
the provisions of this article..." As such, agencies must adopt
regulations consistent with the Freedom of Information Law and the
regulations promulgated by the Committee. Insofar as regulations
are inconsistent with the Freedom of Information Law or the
regulations promulgated by the Committee, I believe that they are
invalid.

On some occasions, the Committee is asked to review agencies'
regulations. However, agencies' proposed regulations are not
ordinarily sent to the Committee on Open Government for review. I
believe that the Legislature's Administrative Regulations Review
Commission reviews regulations prior to their adoption.

You referred to a portion of the regulations of the State
Insurance Fund requiring that the reason for a request be stated.
There is no such provision in either the Freedom of Information Law
or the Committee's regulations. Further, when records are
available under the Freedom of Information Law, it has been held
that they must be made equally available to any person, without
regard to status or interest [see M. Farbman & Sons v. New York
City Health & Hosps. Corp., 62 NY 2d 75 (1984); Burke v. Yudelson,
51 AD 2d 673 (1976)]. The Law does not generally distinguish among
applicants, and the reason for which a request is made is largely
irrelevant to rights of access.

Reference was also made to portions of that agency's
regulations authorizing the assessment of fees at the rate of 30¢
per page for records generally, and $1.50 per page for copies of
statements. In my view, unless a statute, an act of the State
Legislature, authorizes an agency to charge a different fee, an
agency can charge no more than twenty-five cents per photocopy up
to nine by fourteen inches.

By way of background, §87(1)(b)(iii) of the Freedom of
Information Law stated until October 15, 1982, that an agency could
charge up to twenty-five cents per photocopy unless a different fee
was prescribed by "law". Chapter 73 of the Laws of 1982 replaced
the word "law" with the term "statute". As described in the
Committee's fourth annual report to the Governor and the
Legislature of the Freedom of Information Law, which was submitted
in December of 1981 and which recommended the amendment that is now
law:

"The problem is that the term 'law' may
include regulations, local laws, or
ordinances, for example. As such, state
agencies by means of regulation or
municipalities by means of local law may and
in some instances have established fees in
excess of twenty-five cents per photocopy,
thereby resulting in constructive denials of
access. To remove this problem, the word
'law' should be replaced by 'statute',
thereby enabling an agency to charge more than
twenty-five cents only in situations in which
an act of the State Legislature, a statute, so
specifies."

As such, prior to October 15, 1982, a local law, an ordinance, or
a regulation adopted by a state agency, for instance, establishing
a search fee or a fee in excess of twenty-five cents per photocopy
or higher than the actual cost of reproduction was valid. However,
under the amendment, only an act of the State Legislature, a
statute, would in my view permit the assessment of a fee higher
than twenty-five cents per photocopy, a fee that exceeds the actual
cost of reproducing records that cannot be photocopied, or any
other fee, such as a fee for search. In addition, it has been
confirmed judicially that fees inconsistent with the Freedom of
Information Law may be validly charged only when the authority to
do so is conferred by a statute. In Sheehan v. City of Syracuse
[521 NYS 2d 207 (1987)]. a fee in excess of twenty-five cents per
photocopy for certain records was established by an ordinance, and
the court found the ordinance to be invalid.

Further, the specific language of the Freedom of Information
Law and the regulations promulgated by the Committee on Open
Government indicate that, absent statutory authority, an agency may
charge fees only for the reproduction of records. As indicated
earlier §87(1)(b) of the Freedom of Information Law states:

"Each agency shall promulgate rules and
regulations in conformance with this
article...and pursuant to such general rules
and regulations as may be promulgated by the
committee on open government in conformity
with the provisions of this article,
pertaining to the availability of records and
procedures to be followed, including, but not
limited to...

(iii) the fees for copies of records
which shall not exceed twenty-five
cents per photocopy not in excess of
nine by fourteen inches, or the
actual cost of reproducing any other
record, except when a different fee
is otherwise prescribed by statute."

The regulations promulgated by the Committee state in relevant
part that:

"Except when a different fee is otherwise
prescribed by statute:

(a) There shall be no fee charged for the
following:
(1) inspection of records;
(2) search for records; or
(3) any certification pursuant to
this Part" (21 NYCRR section
1401.8).

Therefore, insofar as regulations, a local enactment or a policy
authorize the assessment of a fee other than a maximum fee of
twenty-five cents per photocopy, I believe that they would be
invalid.

Further, although compliance with the Freedom of Information
Law involves the use of public employees' time, the Court of
Appeals has found that the Law is not intended to be given effect
"on a cost-accounting basis", but rather that "Meeting the public's
legitimate right of access to information concerning government is
fulfillment of a governmental obligation, not the gift of, or waste
of, public funds" [Doolan v. BOCES, 48 NY 2d 341, 347 (1979)].

Third, you wrote that §89(8) of the Freedom of Information Law
"appears to provide that the failure to permit the public access to
releasable records is a violation." In my opinion, your statement
is unduly broad. That provision states that:

"Any person who, with intent to prevent public
inspection of a record pursuant to this
article, willfully conceals or destroys any
such record shall be guilty of a violation."

From my perspective, the language quoted above does not deal with
situations in which records are requested and an agency determines
to withhold them in accordance with one or more of the grounds for
denial appearing in §87(2) of the Law. Rather, I believe that it
pertains to situations in which agency officials knowingly conceal
the existence of records or destroy records in order to prevent
disclosure.

Lastly, you asked which agency enforces the Freedom of
Information Law. The Committee on Open Government is authorized to
provide advice concerning the statute. While it is my hope that
advice and opinions rendered by this office are educational and
persuasive, neither the Committee nor any other state agency has
general authority to compel compliance with the Freedom of
Information Law. The usual vehicle for challenging an agency's
denial of access to records or perhaps the validity of its
regulations is a proceeding brought under Article 78 of the Civil
Practice Law and Rules. In the case of an alleged violation of
§89(8), the matter could be brought to a district attorney in
conjunction with §240.65 of the Penal Law.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: Raymond C. Green