July 15, 1994
Mr. Alex Gould
185 Old Westbury Road
Old Westbury, NY 11568
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. Gould:
I have received your letter of July 11 and related materials. You have sought assistance in obtaining certain records from the Village of Westbury. Having requested copies of certificates of occupancy pertaining to a specified parcel in the Village on July 6, the receipt of your request was acknowledged on July 8, and you were advised that Village officials "are researching the matter and will contact you at the appropriate time." When you telephoned the Village to seek clarification of the response, you were told that "they would not be able to furnish...the requested information until September 1, 1994."
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. From my perspective, it is clear that certificates of occupancy must be disclosed, for none of the grounds for denial could properly be asserted to withhold those records.
Second, 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 in writing but fails to provide a written "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). Although receipt of your request was acknowledged in writing, the written acknowledgement provides no estimated date indicating when a determination concerning access would be made. In a somewhat 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'...
"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)].
The authority of an agency to take up to five business days to respond to a request or, if warranted, to take additional time by acknowledging the receipt of a request in accordance with §89(3), is not intended to enable agencies to delay disclosure unnecessarily. As stated by the Court of Appeals, the State's highest court, in a discussion of the scope and intent of the Freedom of Information Law:
"Key is the Legislature's own unmistakably broad declaration that, '[as] state and local government services increase and public problems become more sophisticated and complex and therefore harder to solve, and with the resultant increase in revenues and expenditures, it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible' (emphasis added; Public Officers Law, section 84).
"...For the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom. By their very nature such objectives cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception. The phrase 'public accountability wherever and whenever feasible' therefore merely punctuates with explicitness what in any event is implicit" [Westchester-Rockland Newspapers v. Kimball, 50 NY2d 575, 579 (1980)].
To be consistent with the intent of the Freedom of Information Law and its broad interpretation by the state's highest court, I believe that the Village must give effect to the Law so as to "extend public accountability wherever and whenever feasible."
To suggest that the response to a request for copies of certificates of occupancy can take nearly two months in my opinion serves to negate the clear intent of the Freedom of Information Law as expressed in its statement of legislative intent, and by the courts in their interpretations of the Law. In a municipality the size of the Village of Old Westbury and in a situation in which a request involves a small number of records that are clearly accessible under the Law, I do not believe that there is any justifiable reason for delaying disclosure of the records.
In an effort to enhance compliance with and understanding of the Freedom of Information Law, copies of this opinion will be forwarded to Village officials.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Hon. Eleanor A. Simpson, Mayor
Board of Trustees
John R. Ingram, Superintendent of Public Works