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May 11, 1994

 

 

Mr. James Harrington
P.O. Box 9022
McLean, VA 22101

Dear Mr. Harrington:

As you are aware, your letter of March 23 addressed to the New
York State Attorney General has been forwarded to the Committee on
Open Government. The Committee, a unit of the Department of State,
is authorized to provide advice concerning the New York Freedom of
Information Law.

According to the correspondence, on February 4 you wrote to
the Department of Correctional Services and requested copies of
records "denoting and describing any and all visitors to see inmate
Pamela Smart, a caucasian female transferred to your charge from
the State of New Hampshire erstwhile." Since you had apparently
not received a response as of March 23, you complained to the
Attorney General.

In this regard, I offer the following comments.

First, 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 §87(2)(a) through (i) of the Law.

Of relevance is §87(2)(b), which enables an agency to withhold
records when disclosure would result in "an unwarranted invasion of
personal privacy." In my view, absent the consent of the inmate,
those portions of a log or similar record identifying those who
visit an inmate could be withheld pursuant to §87(2)(b). If you
contact the inmate directly, she could inform you of those who have
visited or obtain copies of records pertaining to her that identify
her visitors and share those records with you.

Second, for future reference, 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 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)].

For your information, the person designated to determine
appeals under the Freedom of Information Law is Counsel to the
Department.

Finally, having contacted the Department on your behalf, I was
informed that a response to your inquiry was sent to you on March
30.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director
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