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April 30, 1993

 

 

Ms. Susan P. Hammond
RD #1 Box 1192
Pennelville, NY 13132

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. Hammond:

I have received your letter of April 12, which reached this
office on April 20, as well as an ensuing letter of April 22 that
was received on April 26.

In brief, you described a series of delays in responding to
requests by the Department of Environmental Conservation (DEC) and
Oswego County involving records relating to the "Village of Central
Square Regionalized Wastewater Collection and Treatment Proposal."
According to your letter, the Proposal arose out of a consent order
issued by the DEC to the Village of Central Square, and Oswego
County is the "lead agency" concerning "the planning, authorizing,
and managing of the proposed sewer district." Although it appears
at this point that the DEC has disclosed the records sought from
that agency, the County has failed to indicate reasons for its
denial and has not disclosed the records requested. In addition,
you enclosed a resolution adopted by the Oswego County Legislature
relating to §253 of the County Law and the preparation of a "map
and plan presented...to [the] Legislature" and scheduling a public
hearing on May 13 on the proposal to establish a sewer district.
The resolution requires the clerk to publish notice of the hearing
pursuant to §254 of the County Law.

You have sought my advice and opinions on the matter. In this
regard, I offer the following comments.

First, the Freedom of Information Law provides direction
concerning the time and manner in which agencies must respond to
requests and appeals. Specifically, §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..."

If neither a response to a request nor an acknowledgement of the
receipt of a request is given within five business days, or if an
agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my
opinion, be considered to have been constructively denied. In such
a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. That
provision 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."

In addition, it has been held that when an appeal is made but
a determination is not rendered within ten business days of the
receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, 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 Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57
NY 2d 774 (1982)].

Second, §253 of the County Law includes detailed direction
concerning the preparation and contents of maps and plans developed
under that provision. Further, §254 of the County Law, which deals
with the requirements relating to the upcoming public hearing,
states in part that:

"Upon receipt of the report and the maps and
plans, the board of supervisors shall call a
public hearing upon a proposal to establish a
county district, to comprise the area or areas
described and defined in said maps and plans.
No public hearing shall be called to establish
a water quality treatment district until the
maps and plans have been submitted to and
approved in writing by the state department of
health. Copy of such notice of approval or
denial of the maps and plans shall be filed in
the office of the clerk of the board of
supervisors of the county in which the
proposed district is located. The clerk of
the board of supervisors shall cause a notice
of the public hearing to be published at least
once in the official newspapers of the county
in such other newspapers having a general
circulation in the proposed district as the
board may direct, the first publications
thereof to be not less than ten or more than
twenty days before the day set therein for the
hearing. The notice of hearing shall contain
a description of the area or areas to be
included within the proposed district, and if
the report shall have recommended the
establishment of zones of assessment, a
description of the area or areas to be
included within each zone of assessment, the
improvements proposed, the maximum amount to
be expended for the improvement, the
allocation of such maximum amount as between
the zones of assessment recommended, if any,
the proposed method of assessment of the cost
and shall specify the time when and place
where the board of supervisors will meet to
consider the matter and to hear all parties
interested therein concerning the same. In
the event that zones of assessment are
provided for and an allocation of costs of the
facilities between such zones of assessment,
said notice shall further state that said
zones of assessment and said allocations of
cost may be changed from time to time by
resolution of the board of supervisors adopted
after a public hearing whenever said board of
supervisors shall determine that such changes
are necessary in the public interest."

Since the hearing includes reference to the ability of "all parties
interested" to express their views regarding a proposal to
establish a county district, it is clear in my view, that to do so
in a knowledgeable manner, maps and plans "filed in the office of
the clerk of the board of supervisors" are intended to be available
to the public in advance of the hearing.

I hope that the foregoing is useful to you and that I have
been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Marguerite Lincoln, Clerk, Board of Supervisors
Bruce Clark, County Attorney
Carol Hodgetts, FOIL Officer