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January 28, 1994

 

 

Mr. Matthew Lee
Executive Director
Inner City Press
Community on the Move
PO Box 416, HUB Station
Bronx, NY 10455

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. Lee:

I have received your letter of January 3 and the
correspondence attached to it. Your kind words are much
appreciated.

You referred to requests and appeals made to two agencies, the
New York City Economic Development Corporation (EDC), and the New
York State Division of Housing and Community Renewal (DHCR).

With respect to the former, a request was made on November 10,
and its receipt was acknowledged on November 15. You were informed
then that a search was being conducted and that you would be
notified of its completion. Nevertheless, having received no
further response, you appealed on the ground that your request was
a "deemed denial". Following your appeal, I received a copy of an
acknowledgement of the receipt of the appeal in which you were
advised that EDC had not denied access to records, and that you
could expect disclosure of the records within approximately twenty
days from the date of that letter.

Your effort to obtain records from DHCR began in February of
last year, and you wrote that you have "received literally more
than a dozen boiler-plate letters requesting more time". You also
asked whether your request that DHCR "certify that it doesn't have
the records, if that is the case, is expressed clearly enough".

In this regard, I offer the following comments.

First, the Freedom of Information Law provides direction
concerning the time and manner in which agencies must respond to
requests. Specifically, §89(3) of that statute 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.
Similarly, if an agency acknowledges the receipt of a request but
fails to provide a "statement of the approximate date when such
request will be granted or denied," the agency in my view would
have failed to comply with §89(3). In an analogous situation in
which the court found that a request was constructively denied, it
was stated that:

"The acknowledgement letters in this
proceeding neither granted nor denied
petitioner's request nor approximated a
determination date. Rather, the letters were
open ended as to time as they stated, 'that a
period of time would be required to ascertain
whether such documents do exist, and if they
did, whether they qualify for inspection'.

"This court finds that respondent's actions
and/or inactions placed petitioner in a 'Catch
22' position. The petitioner, relying on the
respondent's representation, anticipated a
determination to her request. While the
petitioner may have been well advised to seek
an appeal...this court finds that this
petitioner should not be penalized for
respondent's failure to comply with Public
Officers Law §89(3), especially when
petitioner was advised by respondent that a
decision concerning her application would be
forthcoming...

"It should also be noted that petitioner did
not sit idle during this period but rather
made numerous efforts to obtain a decision
from respondent including the submission of a
follow up letter to the Records Access Officer
and submission of various requests for said
records with the different offices of the
Department of Transportation.

"Therefore, this court finds that respondent
is estopped from asserting that this
proceeding is improper due to petitioner's
failure to appeal the denial of access to
records within 30 days to the agency head, as
provided in Public Officers Law §89(4)(a)"
(Bernstein v. City of New York, Supreme Court,
NYLJ, November 7, 1990).

When a request is constructively denied or denied in writing,
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, with respect to certification regarding the existence
of records, you asked that DHCR certify in accordance with "Federal
Rules of Evidence Rules 902 and 803(10), or in similar fashion".
I am unfamiliar with those rules; however, it does not appear they
would appropriately be cited in conjunction with a request for
records made under the New York Freedom of Information Law.
Nevertheless, the Freedom of Information Law in §89(3) includes
reference to the certification you seek and states in relevant part
that:

"Upon payment of, or offer to pay, the fee
prescribed therefor, the entity shall provide
a copy of such record and certify to the
correctness of such copy if so requested, or
as the case may be, shall certify that it does
not have possession of such record or that
such record cannot be found after diligent
search."

Lastly, you asked: "what does one do about records of a public
official after he or she leaves office". In this regard, I believe
that all government records in New York are "public records";
whether they are available to the public under the Freedom of
Information Law or other provisions of law would be dependent on
the nature and content of records. The preservation, retention and
disposal of records of New York City agencies are governed by
provisions of the City Charter and implemented by the Department of
Records and Information Services. Similar provisions pertain to
state agencies and local governments other than New York City in
the Arts and Cultural Affairs Law. Those provisions are
implemented by the State Archives and Records Administration, which
is part of the State Education Department.

In an effort to enhance compliance with and understanding of
the Freedom of Information Law, copies of this response will be
forwarded to EDC and DHCR.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb
cc: Patrice Huss
M. Elizabeth Hegy
Tina Miele
Marisa Lago