July 7, 1994
Charles H. Clark, Esq.
P.O. Box 180
Canajoharie, NY 13317
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. Clark:
As you are aware, I have received your letter of June 21 in which you sought advice concerning the Freedom of Information Law in your capacity as the attorney for the Village of Canajoharie.
By way of background, you wrote that some time ago, after leaving office, the former Mayor was found to have been in possession of Village records. After pleading guilty in the matter, he or persons associated with him have made repeated requests for records and "consumed considerable time of Village employees." In conjunction with the foregoing, you raised the following questions:
"May the Village require advance notice and/or an appointment as to each request; may the time spent each day in allowing such examination or copying be limited; may the Village require that such examination or copying be supervised by a police officer or other Village representative to prevent alteration or removal of original documents and may the Village charge the person making the request for the cost of the services of the Village officer or representative supervising same."
In this regard, I offer the following comments.
First, an agency is not required to respond instantly to a request. Although the Freedom of Information Law provides direction concerning the time and manner in which an agency must respond to requests, it does not include any provision that specifies a period within which records must be disclosed. Section 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..."
While an agency must grant access to records, deny access or acknowledge the receipt of a request within five business days, when such acknowledgement is given, there is no precise time period within which an agency must grant or deny access to records. The time needed to do so may be dependent upon the volume of a request, the possibility that other requests have been made, the necessity to conduct legal research, the search and retrieval techniques used to locate the records and the like. In short, if an agency acknowledges the receipt of a request because more than five business days may be needed to grant or deny a request, so long as it provides an approximate date indicating when the request will be granted or denied, and that date is reasonable in view of the attendant circumstances, I believe that the agency would be acting in compliance with law.
While an agency cannot in my opinion require that an appointment be made with respect to every request, I believe that an applicant for accessible records should be able to make an appointment to inspect those records during regular business hours when an agency has regular business hours. Alternatively, if an applicant cannot know precisely when he or she may have an opportunity to inspect records, it has been suggested that agencies indicate that the records will be available during business hours for a certain period, two weeks, for example, after a request has been granted. If the records are not inspected or copied within such a specified reasonable period, the applicant should be informed that the request will be considered to have been withdrawn.
Second, the regulations promulgated by the Committee on Open Government (21 NYCRR Part 1401), which govern the procedural aspects of the Freedom of Information Law, state in §1401.4 that:
"(a) Each agency shall accept requests for public access to records and produce records during all hours they are regularly open for business.
(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."
When an agency has regular business hours, it must accept requests during those hours. However, for a variety of reasons, I believe that an agency may reasonably limit the time in which an applicant may inspect or copy records. Often records will be needed for use by agency staff; they may be reviewed by others; records may be kept in an area that necessitates staff to take time away from other duties to oversee inspection and copying, etc.
Third, in my opinion, an agency may ensure that a person inspecting or copying records be supervised. As you may be aware, statutes other than Freedom of Information Law provide direction concerning the custody, security, retention and disposal of records. For instance, §57.25 of the Arts and Cultural Affairs Law states in relevant part that:
"1. It shall be the responsibility of every local officer to maintain records to adequately document the transaction of public business and the services and programs for which such officer is responsible; to retain and have custody of such records for so long as the records are needed for the conduct of the business of the office; to adequately protect such records; to cooperate with the local government's records management officer on programs for the orderly and efficient management of records including identification and management of inactive records and identification and preservation of records of enduring value; to dispose of records in accordance with legal requirements; and to pass on to his successor records needed for the continuing conduct of business of the office..."
As such, a local officer must in my view "adequately protect" Village records.
Lastly, based upon §87(1)(b)(iii) of the Freedom of Information Law, the only charge that can be imposed under that statute involves fees for duplicating records. Consequently, I do not believe that the Village could charge for the cost of supervising those who inspect or copy records. I hope that I have been of some assistance.
Robert J. Freeman