April 16, 1993
Ms. F. J. Thompson
4525 H. H. Pkwy.
Bronx, N.Y. 10471
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 Ms. Thompson:
I have received your letters of March 26 and March 27.
The latter involves requests directed to the Actuary of the
City of New York. Although you wrote that you have not made
"unscheduled visits" to that agency, the records access officer,
Ellen Fox-Katine, indicated that you made 33 requests during a
period of approximately six weeks and that the agency has sought to
be responsive. Nevertheless, she added that you "have continually
failed to follow-up", that you failed to appear "for scheduled
appointments to review documents and/or xerox materials provided at
that appointed time", and that your unscheduled visits disrupt the
work of the office. Consequently, she wrote that "this matter is
deemed closed and this determination is final."
You asked that I inform Ms. Fox-Katine that, as records access
officer, she has no authority to make such a determination.
In this regard, as you are aware, the Committee on Open
Government is authorized to provide advice concerning the Freedom
of Information Law. This office cannot direct agency officials to
act in a particular manner or to refrain from acting. Further,
since you and Ms. Fox-Katine have presented different versions of
the facts, I cannot provide guidance concerning whose version of
events is accurate. However, it has been advised in similar
situations that when an agency performs its statutory duties by
retrieving or copying requested records, and the applicant fails or
refuses to review or acquire the records at a scheduled time or
within a reasonable time, the agency may consider the request to
have been withdrawn. For instance, if records have been retrieved
or copied, the agency might so inform the applicant, indicating
that if the records are not inspected or obtained by a certain date
or specific time, the request will be deemed withdrawn.
With respect to your other letters, a review of our files
indicates that copies of the appeals to which you referred have not
been forwarded to this office as of this date.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Ellen Fox-Katine