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May 12, 1993

Mr. Paul Ertelt
The Post-Star
P.O. Box 2157
Glens Falls, NY 12801-0012

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. Ertelt:

I have received your letter of April 29 and the correspondence
attached to it.

According to the materials, having requested records from the
Town of Lake Luzerne, the Town Clerk acknowledged receipt of your
request and indicated that the records sought, if available, would
be furnished within 30 days of the date of the letter of
acknowledgement. When you contacted the Clerk concerning her
response, she "refused to give [you] an approximate date for filing
the request and merely repeated that it would be "within 30 days".
It is your belief that "it is the policy of the town to wait 30
days before responding to an FOI request."

You have sought an advisory opinion on the matter. In this
regard, I offer the following comments.

From my perspective, if, as a matter of practice or policy,
the Town Clerk acknowledges the receipt of requests by stating that
requests will be granted or denied within thirty days, irrespective
of the nature, volume or search needed to respond, such a practice
would be inconsistent with both the language and the intent of the
Law.

The Freedom of Information Law provides direction concerning
the time and manner in which agencies must respond to requests.
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..."

Based upon the foregoing, I believe that agencies, in the case of
routine requests, should ordinarily have the ability to grant or
deny access to records within five business days. If more than
that period is needed, due to the possibility that other requests
have been received, that other duties preclude a quick response, or
because of the volume of a request, the need for consultation, the
search techniques needed to locate records, or the need to review
records to determine which portions should be disclosed or denied,
the estimated date for granting or denying a request indicated in
an acknowledgement should reflect those factors. Those kinds of
considerations may often be present, particularly in large agencies
that may have several units or perhaps regional offices. However,
in the case of a small municipality, such as the Town of Lake
Luzerne, I would conjecture that in most instances, the town clerk,
as the legal custodian of Town records and its records management
officer, has the ability to locate records readily and determine
rights of access quickly. Further, I believe that, to comply with
the Law, the indication of an estimated date when records will be
granted or denied should be as accurate an estimate as possible.
While an estimate of 30 days may be valid or realistic in rare
situations, it would not likely be so in most others.

I point out that there is no reference in the Freedom of
Information Law to a 30 day limitation or period before or within
which a request must be honored. The only reference in the Law to
a 30 day period appears in §89(4)(a), which states that a person
denied access to records may appeal within 30 days of the denial.

Lastly, it is noted that the legislative declaration appearing
at the beginning of the Freedom of Information Law (§84) states in
part that "it is incumbent upon the state and its localities to
extend public accountability wherever and whenever feasible."

In an effort to enhance compliance with and understanding of
the Freedom of Information Law, a copy of this opinion will be sent
to the Town Clerk.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm
cc: Joan K. Hall, Town Clerk