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 May 6, 1993

 

 

Ms. Patricia Carroll
137 McConnell Avenue
Bayport, NY 11705

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. Carroll:

I have received your letter of April 23 in which you sought advice
concerning the Freedom of Information Law.

According to your letter, having made a request for records of
the Bayport Blue Point School District on April 12, the District
Clerk orally confirmed that she received the request the following
day and "put it on the Superintendent's desk for his perusal." You
added that "[h]e was to return on April 16th, on the same day she
would begin vacation." On April 22 and 23, you contacted the
District to question the status of the request, and you were told
that it remained on the Superintendent's desk and that "he'd be in
touch." You indicated that you "never received a written
acknowledgement or a decision about whether it [the request] would
be granted or denied..." In addition, you wrote that the
District's rules adopted under the Freedom of Information Law
indicate that the business administrator is the records access
officer, and that that person has apparently had no involvement in
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 an agency must respond to
a request. 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, in my opinion, either the District Clerk or the
Superintendent should have responded in accordance with previous
commentary or forwarded your request to the business administrator
in that person's capacity as records access officer.

Section 89(1)(b)(iii) of the Freedom of Information Law
requires the Committee on Open Government to promulgate regulations
concerning the procedural implementation of the Law (see 21 NYCRR
Part 1401). In turn, §87(1) requires the governing body of a
public corporation, i.e., a board of education, to adopt rules and
regulations consistent with the Law and the Committee's
regulations.

Relevant to your inquiry is §1401.2 of the regulations, which
provides in relevant part that:

"(a) The governing body of a public
corporation and the head of an executive
agency or governing body of other agencies
shall be responsible for insuring compliance
with the regulations herein, and shall
designate one or more persons as records
access officer by name or by specific job
title and business address, who shall have the
duty of coordinating agency response to public
requests for access to records. The
designation of one or more records access
officers shall not be construed to prohibit
officials who have in the past been authorized
to make records or information available to
the public from continuing to do so.

(b) The records access officer is responsible
for assuring that agency personnel...

(3) Upon locating the records, take one of
the following actions:

(i) make records promptly available for
inspection; or
(ii) deny access to the records in whole or in
part and explain in writing the reasons
therefor..."

In view of the foregoing, the records access officer has the "duty
of coordinating agency response" to requests and assuring that
agency personnel act appropriately in response to requests. As
such, in my opinion, either the records access officer or some
other person should have responded to your request in a manner
consistent with the Freedom of Information Law.

In an effort to assist you, copies of this opinion will be
forwarded to School District officials.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Superintendent
District Clerk
Business Administrator