NY.gov Portal State Agency Listing

 

May 28, 1993

 

 

Mr. Paul F. Carella
337 N. Greenbush Road
Troy, NY 12180

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. Carella:

I have received your letter of May 9, as well as the
correspondence attached to it.

You have sought an advisory opinion concerning your effort to
examine records of the City of Albany. By way of background, you
resided at a home that was the site of a gas explosion in 1987.
Although you had retained an attorney and initiated litigation
against the City, you indicated that no attorney is currently
representing you in the matter and that the case is "dead in the
water". In a request of February 19 addressed to Ms. Stacy Kitt,
Assistant Corporation Counsel, you wrote that your attorney no
longer represents you and you asked to examine:

"1. All correspondence between the City of
Albany and Lewis B. Oliver regarding the
matter of Paul F. Carella v. The City of
Albany, Albany County Index No. 1152-92.

2. All documents relating to the discovery of
methane gas, natural gas, swamp gas, or any
other explosive gas on Frisbie Avenue in 1987
and all documents concerning activities or
matters relating to and following such a
discovery."

In response, Ms. Kitt wrote that the "items you request were all
provided to Mr. Oliver and should be in his files", that you and
your attorney are entitled to "possession of those files", and that
recopying the records would be unnecessary costly. As such, she
suggested you inform her when you retain new counsel. Soon
thereafter, you wrote to Ms. Kitt, stating that your request had
not been withdrawn and that you are not seeking copies of records
but rather the opportunity to examine them. Following the
transmittal of that letter, you were informed by the City's records
access officer that Ms. Kitt referred the matter to her, and "to
avoid further confusion", you were asked to complete the City's
request form and "describe as specifically as possible the records
you wish to examine." Following your objection to completing the
form, the Records Access Officer indicated that you could review
the correspondence between the City and your former attorney.
However, she wrote that the remainder of your request did not
reasonably describe the records. It is your view that the request
adequately describes the records. Further, you indicated that you
have received no further response or any response to an appeal made
on April 13.

In this regard, I offer the following comments.

First, as a general matter, when records are accessible under
the Freedom of Information Law, it has been held that they should
be made equally available to any person, regardless of one's
status, interest or the intended use of the records [see Burke v.
Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165
(1976)]. Moreover, the Court of Appeals has held that:

"FOIL does not require that the party
requesting records make any showing of need,
good faith or legitimate purpose; while its
purpose may be to shed light on government
decision-making, its ambit is not confined to
records actually used in the decision-making
process. (Matter of Westchester Rockland
Newspapers v. Kimball, 50 NY2d 575, 581.)
Full disclosure by public agencies is, under
FOIL, a public right and in the public
interest, irrespective of the status or need
of the person making the request" [Farbman v.
New York City Health and Hospitals
Corporation, 62 NY 2d 75, 80 (1984)].

Farbman pertained to a situation in which a person involved in
litigation against an agency requested records from that agency
under the Freedom of Information Law. In brief, it was found that
one's status as a litigant had no effect upon that person's rights
as a member of the public when using the Freedom of Information
Law, irrespective of the intended use of the records. As such, the
fact that you are or may have been a litigant has no effect upon
your rights as a member of the public under the Freedom of
Information Law.

Second, §89(3) of the Freedom of Information Law states in
part that an applicant must "reasonably describe" the records
sought. In considering that standard, the State's highest court
has found that requested records need not be "specifically
designated", that to meet the standard, the terms of a request must
be adequate to enable the agency to locate the records, and that an
agency must "establish that 'the descriptions were insufficient for
purposes of locating and identifying the documents sought'...before
denying a FOIL request for reasons of overbreadth" [Konigsberg v.
Coughlin, 68 NY 2d 245, 249 (1986)].

Although it was found in the decision cited above that the
agency could not reject the request due to its breadth, it was also
stated that:

"respondents have failed to supply any proof
whatsoever as to the nature - or even the
existence - of their indexing system: whether
the Department's files were indexed in a
manner that would enable the identification
and location of documents in their possession
(cf. National Cable Tel. Assn. v Federal
Communications Commn., 479 F2d 183, 192
[Bazelon, J.] [plausible claim of
nonidentifiability under Federal Freedom of
Information Act, 5 USC section 552 (a) (3),
may be presented where agency's indexing
system was such that 'the requested documents
could not be identified by retracing a path
already trodden. It would have required a
wholly new enterprise, potentially requiring a
search of every file in the possession of the
agency']" (id. at 250).

In my view, whether a request reasonably describes the records
sought, as suggested by the Court of Appeals, may be dependent upon
the terms of a request, as well as the nature of an agency's filing
or record-keeping systems. In Konigsberg, it appears that the
agency was able to locate the records on the basis of an inmate's
name and identification number. In this instance, I am unaware of
the means by which the City maintains records "relating to the
discovery of" gas in 1987 or other records "concerning activities
on matters relating to and following such a discovery". If the
City maintains all such records in a file or group of files that
are retrievable on the basis of the terms of your request, I
believe that you have met the requirements that the records be
reasonably described. On the other hand, however, due to the
nature of the event, it is possible that the City maintains records
falling within the scope of your request in a number of locations
or departments and by means of different filing systems within
those departments. In addition to records relating to the matter
that are in possession of the Office of Corporation Counsel, it is
possible that your request may involve records of the City
Comptroller, the Police and Fire Departments, as well as the
Departments of Engineering, Housing and Community Renewal, Public
Works, Traffic Engineering, Water and Water Supply, and perhaps
others. If indeed the records sought are kept by a variety of
agencies and by means of a variety of filing methods, it is likely
in my opinion that the second aspect of the request would not have
reasonably described the records.

It is noted that, pursuant to regulations promulgated by the
Committee on Open Government that pertain to the procedural
implementation of the Freedom of Information Law (21 NYCRR Part
1401), an agency's records access officer "is responsible for
assuring that agency personnel...Assist the requester in
identifying requested records, if necessary" [§1401.2(b)(2)].
Therefore, it is suggested that you contact the records access
officer to discuss the matter in an effort to enable you to
reasonably describe the records sought.

Lastly, in view of the absence of further responses to your
request by the City, I point out that the Freedom of Information
Law provides direction concerning the time within which an agency
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)].

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Pamela Primomo Alley, Records Access Officer
Stacy Kitt, Assistant Corporation Counsel