June 3, 1994
Mr. Patrick Morris
341 Central Avenue
Salamanca, NY 14779
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. Morris:
I have received your letter of May 6 and the materials
attached to it.
In brief, having requested minutes of meetings of the
Salamanca Industrial Development Agency, as well as a "listing of
all records maintained by the IDA and whether or not those records
are available to the public", you wrote that your request was
denied, and you raised a series of questions relating to the
In an effort to answer to those questions and in conjunction
with the correspondence, I offer the following comments.
First, the response to your request indicates that minutes of
meetings would be made available, but that the Agency did "not have
available staff or time to go through all of the Agency minutes for
the past three years to filter out the information you want". I am
unaware of the particular information in which you are interested.
However, it appears that the response was appropriate.
It is clear that minutes of meetings of an industrial
development agency must be prepared and made available to the
public. As you are aware, §106(3) of the Open Meetings Law states
"Minutes of meetings of all public bodies
shall be available to the public in accordance
with the provisions of the freedom of
information law within two weeks from the date
of such meeting except that minutes taken
pursuant to subdivision two hereof shall be
available to the public within one week from
the date of the executive session."
Further, pursuant to §87(2) of the Freedom of Information Law,
accessible records must be made available for inspection and
copying. Therefore, I believe that you may inspect minutes at no
charge; alternatively, you could request copies of minutes, in
which case, the Agency could charge up to twenty-five cents per
photocopy [see Freedom of Information Law, §87(1)(b)(iii)].
Second, with respect to the adequacy of a request, often the
issue is whether the request "reasonably describes" the records
sought as required by §89(3) of the Freedom of Information Law. It
has been held that a request reasonably describes the records when
the agency can locate and identify the records based on the terms
of a request, and that to deny a request on the ground that it
fails to reasonably describe the records, an agency must establish
that "the descriptions were insufficient for purposes of locating
and identifying the documents sought" [Konigsberg v. Coughlin, 68
NY 2d 245, 249 (1986)].
Although it was found in the decision cited above that the
agency could not reject the request due to its breadth, it was also
"respondents have failed to supply any proof
whatsoever as to the nature - or even the
existence - of their indexing system: whether
the Department's files were indexed in a
manner that would enable the identification
and location of documents in their possession
(cf. National Cable Tel. Assn. v Federal
Communications Commn., 479 F2d 183, 192
[Bazelon, J.] [plausible claim of
nonidentifiability under Federal Freedom of
Information Act, 5 USC section 552 (a) (3),
may be presented where agency's indexing
system was such that 'the requested documents
could not be identified by retracing a path
already trodden. It would have required a
wholly new enterprise, potentially requiring a
search of every file in the possession of the
agency'])" (id. at 250).
In my view, whether a request reasonably describes the records
sought, as suggested by the Court of Appeals, may be dependent upon
the terms of a request, as well as the nature of an agency's filing
or record-keeping system. In Konigsberg, it appears that the
agency was able to locate the records on the basis of an inmate's
name and identification number.
In the context of your inquiry, I would conjecture that
minutes of meetings may be readily retrieved and that a request for
minutes covering a period of three years would reasonably describe
the records. If, however, a request involves minutes insofar as
they deal with a particular subject, and if the minutes are not
topically indexed, I do not believe that agency staff would be
required to review all of the minutes in an effort to locate
particular items within them.
Third, with regard to rules and regulations, §89(1)(b)(iii)
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 the Agency is required to
promulgate appropriate rules and regulations consistent with those
adopted by the Committee on Open Government and with the Freedom of
Next, as a general matter, with certain exceptions, an agency
is not required to create or prepare a record to comply with the
Freedom of Information Law [see §89(3)]. An exception to that rule
relates to a list maintained by an agency. Specifically, §87(3) of
the Freedom of Information Law states in relevant part that:
"Each agency shall maintain...
c. a reasonably detailed current list by
subject matter, of all records in the
possession of the agency, whether or not
available under this article."
The "subject matter list" required to be maintained under §87(3)(c)
is not, in my opinion, required to identify each and every record
of an agency; rather I believe that it must refer, by category and
in reasonable detail, to the kinds of records maintained by an
agency. Further, the regulations promulgated by the Committee on
Open Government state that such a list should be sufficiently
detailed to enable an individual to identify a file category of the
record or records in which that person may be interested [21 NYCRR
1401.6(b)]. I emphasize that §87(3)(c) does not require that an
agency ascertain which among its records must be made available or
may be withheld. Again, the Law states that the subject matter
list must refer, in reasonable detail, to the kinds of records
maintained by an agency, whether or not they are available.
It has been suggested that the records retention and disposal
schedules developed by the State Archives and Records
Administration at the State Education Department may be used as a
substitute for the subject matter list.
Lastly, when records are available under the Freedom of
Information Law, it has been held that they must be made equally
available to any person, without regard to one's status, interest
or possible public benefit that may accrue to the public [see M.
Farbman & Sons v. New York City Health & Hosps. Corp., 62 NY 2d 75
(1984); Burke v. Yudelson, 51 AD 2d 673 (1976)]. The Law does not
generally distinguish among applicants, and the intended use of
records is largely irrelevant to rights of access or the fees that
agencies may charge. In addition, although compliance with the
Freedom of Information Law involves the use of public employees'
time, the Court of Appeals has found that the Law is not intended
to be given effect "on a cost-accounting basis", but rather that
"Meeting the public's legitimate right of access to information
concerning government is fulfillment of a governmental obligation,
not the gift of, or waste of, public funds" [Doolan v. BOCES, 48 NY
2d 341, 347 (1979)].
I hope that I have been of some assistance.
Robert J. Freeman
cc: Nancy Milligan, General Manager