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December 20, 1993

 

 

Mr. George J.H. Cook
3 McCarthy Court
Farmingdale, NY 11735

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,
unless otherwise indicated.

Dear Mr. Cook:

As you are aware, I have received your letter of November 5
and the materials attached to it. Please accept my apologies for
the delay in response.

According to the materials, on October 20, you requested from
the Village of Farmingdale copies "pre and post election filings
'statement of campaign receipts and expenditures'" concerning the
Village Restoration and the Liberty parties relative to elections
held in March of 1992. In the request, you noted that "These are
the Campaign's financial statements". In an acknowledgement of the
receipt of the request on November 1, the Village Clerk-Treasurer
wrote that "[w]e estimate that your request will be granted by the
end of January, 1994".

You have asked whether the clerk can properly delay disclosure
for so lengthy a period. From my perspective, a delay of so long
cannot be justified. In this regard, I offer the following
comments.

First, as I understand the situation, the records in question
must be prepared and timely filed pursuant to Article 14 of the
Election Law, which also describes their form and content.
Further, there is clear indication that the records are intended to
be readily available to the public. Section 14-108 of the Election
Law states in part that:

"3. Each statement shall be preserved by
the officer with whom or the board
with which it is required to be
filed for a period of five years
from the date of filing thereof.

4. Each statement shall constitute part
of the public records of such
officer or board and shall be open
to inspection."

Second, aside from the clear intent expressed in the Election
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..."

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 this
instance, it is clear that the records sought must be prepared,
filed and disclosed; they are not voluminous, and there appears to
be no valid basis for delaying prompt disclosure. In my view, the
estimated date of disclosure is unreasonable and could be
characterized as a constructive denial of access that 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 an effort to enhance compliance with law, a copy of this
opinion will be forwarded to the Clerk-Treasurer.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb
cc: John Giordano, Clerk-Treasurer