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August 17, 1994

 

 

Mr. Salvatore Dagnone
89-A-9751
Box 149
Attica, NY 14011-0149

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear Mr. Dagnone:

I have received your letter of August 10. You wrote that you are attempting to obtain your "visit room records" from the New York City jail at Riker's Island, and you asked for the address of the person from whom you may request the records.

In this regard, I offer the following comments.

First, each agency is required to designate one or more person's as "records access officer" (see 21 NYCRR Part 1401). The records access officer has the duty of coordinating an agency's response to requests, and a request should be made to that person. It is suggested that you direct a request to the records access officer at the New York City Department of Correction, 60 Hudson Street, 6th Floor, New York, NY 10013.

Second, §89(3) of the Freedom of Information Law states in part that an applicant must "reasonably describe" the records sought. In considering that standard, the State's highest court has found that to meet the standard, the terms of a request must be adequate to enable the agency to locate the records, and that an agency must "establish that 'the descriptions were insufficient for purposes of locating and identifying the documents sought'...before denying a FOIL request for reasons of overbreadth" [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 stated that:

"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 systems. 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 this instance, I am unaware of the means by which visiting room records are kept or compiled. If an inmate's name or other identifier can be used to locate records or portions of records that would identify the inmate's visitors, it would likely be easy to retrieve that information, and the request would reasonably describe the records. On the other hand, if there are chronological logs of visitors and each page would have to be reviewed in an effort to identify visitors of a particular inmate, I do not believe that agency staff would be required to engage in such an extensive search.

Third, assuming that items of your interest can be located, I believe that they would be available to you. However, insofar as logs or similar records identify other inmates and their visitors, I believe that those portions of the records could be withheld on the ground that disclosure would constitute "an unwarranted invasion of personal privacy."

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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