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May 18, 1993

 

 

Mr. G. Allen Randolph
Ms. Jere Williamson
Columbia University in the City
of New York
Graduate School of Journalism
Journalism Building
New York, NY 10027

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,
except as otherwise indicated.

Dear Mr. Randolph and Ms. Williamson:

As you are aware, I have received your letter of April 2.

In brief, according to your letter and the correspondence
attached to it, you requested records from the Office of the New
York County Public Administrator but received no response. Due to
the failure to respond, you submitted an appeal to the Office of
the New York City Corporation Counsel. However, you wrote that
"some sectors believe the Public Administrator is a New York City
agency", while others "believe it is under the auspices of the
State of New York". You have asked where, in my view, an appeal
should be filed, and you seek any additional input that I might
provide.

In this regard, in an effort to assist you, I have engaged in
telephone conversations involving New York City, New York State and
Surrogate's Court officials. As you know, Public Administrators
are appointed by the Surrogate in their respective counties, and
their salaries are paid by New York City (see Surrogate's Court
Procedure Act, §§1102, 1108). Further, §1110(1) of the Surrogate's
Court Procedure Act states that:

"The City of New York shall be answerable for
the faithful execution by the public
administrator of all the duties of his office
and for the application by him of all moneys
and property received by him and for all
moneys and securities and the interest,
earnings and dividends actually received by
him or which he should have collected or
received."

Nevertheless, a representative of the Office of Corporation Counsel
expressed the opinion that the Office of Public Administrator is
not a City agency, for the City government has no general authority
to oversee the operations of the Public Administrator or compel the
Public Administrator to carry out his or her duties. Similarly, it
was advised that Corporation Counsel has no jurisdiction over the
Public Administrator concerning the implementation of the Freedom
of Information Law. Having discussed the matter with an attorney
for the Office of Court Administration, it was contended that the
Office of Public Administrator is something of a hybrid, and that
it is not an extension or an arm of that agency.

Based upon a review of the law and the discussions described
earlier, in my opinion, the Office of Public Administrator is not
clearly an agency of either New York City or New York State, but
rather is sui generis, a unique entity unto itself. Moreover, I
believe that it is an "agency" with an independent responsibility
to give effect to the Freedom of Information Law.

The Freedom of Information Law applies to agency records, and
§86(3) of that statute defines the term "agency" to include:

"any state or municipal department, board,
bureau, division, commission, committee,
public authority, public corporation, council,
office or other governmental entity performing
a governmental or proprietary function for the
state or any one or more municipalities
thereof, except the judiciary or the state
legislature."

In turn, §86(1) defines "judiciary" to mean:

"the courts of the state, including any
municipal or district court, whether or not of
record."

As such, the courts are not subject to the Freedom of Information
Law. By means of analogy, however, I point out that it has been
held that the Office of Court Administration is an "agency"
required to comply with the Freedom of Information Law. The
initial decision on the subject, which cited an advisory opinion
prepared by this office, included the following discussion of the
matter:

"The court must look to the intent of the
legislature to determine whether the Office of
Court Administration, in the exercise of a
purely administrative and personnel function,
is to be excluded from the applicable
provisions of the Freedom of Information Law.
Public Officers Law §84 states in part 'The
people's right to know the process of
governmental decisionmaking and to review the
documents and statistics leading to
determinations is basic to our society.
Access to such information should not be
thwarted by shrouding it with the cloak of
secrecy or confidentiality.'

"In view of the legislative purpose to promote
open government, the court is inclined to
construe narrowly any section that would tend
to exclude offices of government from the law.
Public Officers Law §86 specifically refer to
courts when it defines 'Judiciary.' The
legislature did not include the administrative
arm of the court. The Office of Court
Administration does not exercise a judicial
function, conduct civil or criminal trials, or
determine pre-trial motions. Respondent is
not a 'court.'

"It is significant to note that respondent
refers to several sections of the Judiciary
Law that regulate access to judicial records
and allegedly perform a function similar to
that of the Freedom of Information Law. None
of the sections specified would address access
to the information sought by petitioner
pertaining to personnel and salaries
exclusively.

"Accordingly, the court rejects respondent's
contention that it is in all respects exempt
from the provisions of the Freedom of
Information Law." [Babigian v. Evans, 427 NYS
2d 688, 689 (1980) aff'd 97 Ad 2d 992 (1983);
Quirk v. Evans, 455 NYS 2d 918, 97 Ad 2d 992
(1983)].

Like the Office of Court Administration, which administers the
court system and is an agency subject to the Freedom of Information
Law, the Office of Public Administrator, as its title suggests,
performs administrative functions relative to Surrogates' Courts in
New York City. Further, the information sought would not
constitute court records or pertain to judicial proceedings; on the
contrary, it pertains to records involving administrative
functions.

Assuming that the Office of Public Administrator is an agency
subject to the Freedom of Information Law, it would be required to
carry out its duties in accordance with certain procedural rules
and regulations. By way of background, §89(1)(b)(iii) of the
Freedom of Information Law requires the Committee on Open
Government to promulgate regulations concerning the procedural
aspects of the Law (see 21 NYCRR Part 1401). In turn, §87(1) of
the Law requires each agency to promulgate rules and regulations
consistent with the Law and the Committee's regulations.

The initial responsibility to deal with requests is borne by
an agency's records access officer, and the Committee's regulations
provide direction concerning the designation and duties of a
records access officer. Specifically, §1401.2 of the regulations
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."

Section 1401.2(b) of the regulations describes the duties of a
records access officer, including the duty to coordinate the
agency's response to requests.

In addition, §1401.7 of the Committee's regulations provide in
part that:

"(a) The governing body of a public
corporation or the head, chief executive or
governing body of other agencies shall hear
appeals or shall designate a person or body to
hear appeals regarding denial of access to
records under the Freedom of Information Law.

(b) Denial of access shall be in writing
stating the reason therefor and advising the
person denied access of his or her right to
appeal to the person or body established to
hear appeals, and that person or body shall be
identified by name, title, business address
and business telephone number. The records
access officer shall not be the appeals
officer."

I point out, too, that 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)].

In sum, as the head of an agency subject to the Freedom of
Information Law, the Public Administrator is in my opinion required
to promulgate rules for the procedural implementation of that
statute, which would include the designation of a records access
officer, as well as an appeals officer. The appeals officer would
be the Public Administrator or a person designated to determine
appeals by the Public Administrator.

With respect to rights of access, the Freedom of Information
Law is based upon a presumption of access. Stated differently, all
records of an agency are available, except to the extent that
records or portions thereof fall within one or more grounds for
denial appearing in section 87(2)(a) through (i) of the Law.

The records that you requested involved those reflective of
the "identity of any consultant or consultants and vendor or
vendors who provided computer consultation services or equipment to
the Office of the Public Administrator, County of New York in the
years 1989 through 1993." In my opinion, insofar as the records
sought are maintained by the Office of Public Administrator and can
be found, they would be available. In short, none of the grounds
for denial could properly be asserted to withhold the kinds of
records that fall within the scope of your request, such as
contracts, bills, vouchers, purchase orders and the like.

Moreover, although you may be students or non-residents, those
factors are irrelevant to your rights under the Freedom of
Information Law as members of the public. 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)].

Finally, it is emphasized that the courts have consistently
interpreted the Freedom of Information Law in a manner that fosters
maximum access. As stated by the Court of Appeals more than decade
ago:

"To be sure, the balance is presumptively
struck in favor of disclosure, but in eight
specific, narrowly constructed instances where
the governmental agency convincingly
demonstrates its need, disclosure will not be
ordered (Public Officers Law, section 87, subd
2). Thus, the agency does not have carte
blanche to withhold any information it
pleases. Rather, it is required to articulate
particularized and specific justification and,
if necessary, submit the requested materials
to the courts for in camera inspection, to
exempt its records from disclosure (see Church
of Scientology of N.Y. v. State of New York,
46 NY 2d 906, 908). Only where the material
requested falls squarely within the ambit of
one of these statutory exemptions may
disclosure be withheld" [Fink v. Lefkowitz, 47
NY 2d 567, 571 (1979)]."

In another decision rendered by the Court of Appeals, it was held
that:

"Exemptions are to be narrowly construed to
provide maximum access, and the agency seeking
to prevent disclosure carries the burden of
demonstrating that the requested material
falls squarely within a FOIL exemption by
articulating a particularized and specific
justification for denying access" [Capital
Newspapers v. Burns, 67 NY 2d 562, 566 (1986);
see also, Farbman & Sons v. New York City, 62
NY 2d 75, 80 (1984); and Fink v. Lefkowitz, 47
NY 2d 567, 571 (1979)].

In the same decision, in a statement regarding the intent and
utility of the Freedom of Information Law, it was found that:

"The Freedom of Information Law expresses this
State's strong commitment to open government
and public accountability and imposes a broad
standard of disclosure upon the State and its
agencies (see, Matter of Farbman & Sons v New
York City Health and Hosps. Corp., 62 NY 2d
75, 79). The statute, enacted in furtherance
of the public's vested and inherent 'right to
know', affords all citizens the means to
obtain information concerning the day-to-day
functioning of State and local government thus
providing the electorate with sufficient
information 'to make intelligent, informed
choices with respect to both the direction and
scope of governmental activities' and with an
effective tool for exposing waste, negligence
and abuse on the part of government officers"
(id., 565-566).

In an effort to enhance compliance with and understanding of
the Freedom of Information Law, copies of this opinion will be
forwarded to the Public Administrator, as well as others.

I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director
RJF:pb

cc: Ethel J. Griffin, Public Adminstrator
Hon. Renee R. Roth, Surrogate
Steven Gulden, Assistant Corporation Counsel
Clarence Orsland, Assistant Corporation Counsel