NY.gov Portal State Agency Listing

 

June 9, 1993

 

 

Mr. Stephen T. Shannon
160 Montbleu Drive
Getzville, NY 14068

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. Shannon:

I have received your letter of May 25 in which you sought
assistance in obtaining information from the Williamsville Central
School District under the Freedom of Information Law and the
Personal Privacy Protection Law.

Enclosed as requested are the brochures concerning those
statutes. However, before dealing with the issues that you raised,
I point out that the Personal Privacy Protection Law applies only
to state agencies. The coverage of that statute is determined in
part by its definition of "agency". For purposes of the Personal
Privacy Protection Law, the term "agency" is defined in §92(1) to
mean:

"any state board, bureau, committee,
commission, council, department, public
authority, public benefit corporation,
division, office or any other governmental
entity performing a governmental or
proprietary function for the state of New
York, except the judiciary or the state
legislature or any unit of local government
and shall not include offices of district
attorneys."

Since the definition specifically excludes units of local
government, the Personal Privacy Protection Law would not apply to
a school district.

The Freedom of Information Law, §86(3), defines the term
"agency" more expansively 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."

Based upon the foregoing, a school district is clearly required to
comply with the Freedom of Information Law.

You referred to delays and hesitancy on the part of District
officials to answer your inquiries. Further, having read the
brochure concerning the Freedom of Information Law, you wrote that
"it appeared that external audit results of the examination of
school district records would be included within the scope of
information that must be provided to a district taxpayer." You
have asked whether your contention is accurate.

In this regard, I offer the following comments.

First, since I am unfamiliar with the inquiries directed to
the District, I point out that the Freedom of Information Law
pertains to existing records. Section 89(3) of the Law states in
part that an agency need not create a record in response to a
request. Therefore, an agency is not required to provide
information by responding to questions; rather, an agency must
disclose existing records to the extent required by law.

Second, with respect to its procedural implementation, 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)(a) of the Law states that:

"the governing body of each public corporation
shall promulgate uniform rules and regulations
for all agencies in such public corporation
pursuant to such general rules and regulations
as may be promulgated by the committee on open
government in conformity with the provisions
of this article, pertaining to the
administration of this article."

In this instance, the governing body of a public corporation, the
Board of Education, is required to promulgate appropriate rules and
regulations consistent with those adopted by the Committee on Open
Government and with the Freedom of Information Law.

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."

As such, the Board of Education is required to designate "one or
more persons as records access officer". Further, §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.

It is also noted that the Freedom of Information Law provides
direction concerning the time and manner in which an agency 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..."

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)].

Third, as a general matter, 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.

On the basis of your letter, it appears that you requested an
audit performed by a person who is not a District employee, or by
an auditing firm. If that is so, such a record in my opinion would
be accessible. Relevant to an analysis of rights of access to
external audits is §87(2)(g). Although that provision is one of
the grounds for denial, due to its structure, it often requires
disclosure. Section 87(2)(g) states that an agency may withhold
records that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or
data;

ii. instructions to staff that affect the
public;

iii. final agency policy or determinations;
or

iv. external audits, including but not
limited to audits performed by the comptroller
and the federal government..."

It is noted that the language quoted above contains what in effect
is a double negative. While inter-agency or intra-agency materials
may be withheld, portions of such materials consisting of
statistical or factual information, instructions to staff that
affect the public, final agency policy or determinations or
external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently,
those portions of inter-agency or intra-agency materials that are
reflective of opinion, advice, recommendation and the like could in
my view be withheld. Consequently, an external audit prepared with
respect to or for a school district would in my opinion be
accessible under §87(2)(g)(iv) of the Freedom of Information Law.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

Encs.

cc: President, Board of Education
Superintendent of Schools