January 18, 1994
Mr. Lee W. Stemmer
4160 Watervale Road
Manlius, NY 13104
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. Stemmer:
I have received your letter of December 11, which reached this
office on December 17.
In brief, you have complained that the hours for reviewing
records of the Town of Pompey are unduly restrictive, for you wrote
that "the Clerk stated that her normal business hours were only
Saturday from 9 to 12, and also Wednesday evenings from 6 to 8, or
at her home where she kept no records." You also indicated that
there are two deputy clerks.
In this regard, I offer the following comments.
First, the Freedom of Information Law provides direction
concerning the time and manner in which an agency must respond to
a request. 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)].
Second, §89(1)(b)(iii) of the Freedom of Information Law
requires the Committee on Open Government to promulgate regulations
concerning the procedural implementation of the Law (see 21 NYCRR
Part 1401). In turn, §87(1) requires the governing body of a
public corporation, i.e., a town board, to adopt rules and
regulations consistent with the Law and the Committee's
Relevant to your inquiry is §1401.2 of the regulations, which
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.
(b) The records access officer is responsible
for assuring that agency personnel...
(3) Upon locating the records, take one of
the following actions:
(i) make records promptly available for
(ii) deny access to the records in whole or in
part and explain in writing the reasons
In view of the foregoing, the records access officer has the "duty
of coordinating agency response" to requests and assuring that
agency personnel act appropriately in response to requests.
Third, §1401.4 of the regulations entitled "Hours for public
inspection" states that:
"(a) Each agency shall accept requests for
public access to records and produce records
during all hours they are regularly open for
(b) In agencies which do not have daily
regular business hours, a written procedure
shall be established by which a person may
arrange an appointment to inspect and copy
records. Such procedure shall include the
name, position, address and phone number of
the party to be contacted for the purpose of
making an appointment."
Therefore, insofar as Town offices operate during regular business
hours, I believe that the public should have the opportunity to
request and review records during those hours. As indicated above,
if there are no regular business hours, an appointment procedure
should be devised. Further, I know of no provision that requires
that town records be kept in town offices at all times, and it has
been held that a clerk may maintain temporary possession of records
at her home, so long as that person complies with the Freedom of
Information Law [see Town of Northumberland v. Eastman, 493 NYS 2d
93 (1985)]. As such, when a request is made in advance, if there
are no regular business hours, perhaps an appointment could be made
to inspect the records in a timely manner, either at Town offices
or at the home of the Clerk or a deputy.
You also raised an issue concerning fees for copies. In
short, §87(1)(b)(iii) of the Freedom of Information Law authorizes
an agency, in accordance with its rules, to charge up to twenty-five cents per photocopy. Nevertheless, an agency could establish
a lesser fee or waive fees regarding copies of certain kinds of
records or in certain circumstances.
Lastly, you wrote that the Town "has yet to designate an FOI
appeals person or body despite [my] letter of August 25, 1983."
You asked that I "resend a copy of that letter" to the Supervisor.
I will do so, and in addition, I point out that the regulations
provide specifically 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" (section 1401.7).
I hope that I have been of some assistance.
Robert J. Freeman
cc: Hon. Frank Valletta, Supervisor
Hon. Ann S. Christmas, Town Clerk