Ms. Michele Emmi
312 Kattelville Road
Binghamton, NY 13901
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 Ms. Emmi:
I have received your letter of October 10, which reached this office on October 17.
According to your letter, a member of the Chenango Town Board:
"...indicated that the Town Attorney feels that the law says that the municipality can handle requests in 3 ways 1) grant the request within 5 business days. 2) Deny access in writing. Or, 3) furnish a written acknowledgement and a statement of when the request will be granted or denied."
In conjunction with the foregoing, you wrote that the Town has adopted a "policy of acknowledging and specifying that the request will be granted or denied within 30 days of the date, all on the same form."
You have sought an advisory opinion on the matter. In this regard, I offer the following comments.
From my perspective, if, as a matter of practice or policy, the Town acknowledges the receipt of requests by stating that requests will be granted or denied within thirty days, irrespective of the nature, volume or search needed to respond, such a practice would be inconsistent with both the language and the intent of the Law.
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..."
Based upon the foregoing, I believe that agencies, in the case of routine requests, should ordinarily have the ability to grant or deny access to records within five business days. If more than that period is needed, due to the possibility that other requests have been received, that other duties preclude a quick response, or because of the volume of a request, the need for consultation, the search techniques needed to locate records, or the need to review records to determine which portions should be disclosed or denied, the estimated date for granting or denying a request indicated in an acknowledgement should reflect those factors. Those kinds of considerations may often be present, particularly in large agencies that may have several units or perhaps regional offices. However, in the case of a small municipality, such as the Town of Chenango, I would conjecture that in most instances, the town clerk, as the legal custodian of Town records and its records management officer, has the ability to locate records readily and determine rights of access quickly. Further, I believe that, to comply with the Law, the indication of an estimated date when records will be granted or denied should be as accurate an estimate as possible. While an estimate of 30 days may be valid or realistic in rare situations, it would not likely be so in most others.
I point out that there is no reference in the Freedom of Information Law to a 30 day limitation or period before or within which a request must be honored. The only reference in the Law to a 30 day period appears in §89(4)(a), which states that a person denied access to records may appeal within 30 days of the denial.
Lastly, it is noted that the legislative declaration appearing at the beginning of the Freedom of Information Law (§84) states in part that "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible."
In an effort to enhance compliance with and understanding of the Freedom of Information Law, a copy of this opinion will be sent to the Town Board. I hope that I have been of some assistance.
Robert J. Freeman
cc: Town Board