March 3, 1995
Ms. Arlene Fleishman
Community School Board 25
Street Flushing, NY 11365
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. Fleishman:
I have received your letter of February 23. In your capacity as President of Community School 25, you referred to an advisory opinion prepared on February 14 at the request of the Co-Presidents of the Presidents' Council of District 25.
You have sought clarification of my opinion, for you wrote that the records that were the subject of that opinion are requested at the meetings during which they are discussed. You indicated that "[t]he requests ask that any information received by the Board at these sessions simultaneously be distributed to all those in attendance to observe these working sessions" (emphasis yours).
In this regard, although an agency may respond to an oral request made under the Freedom of Information Law, §89(3) of that statute authorizes an agency to require that a request be made in writing. Further, while a board may choose to furnish information or records during a meeting, it may require that a request be made in accordance with its rules and regulations adopted under the Freedom of Information Law.
By way of background, §89(1)(b)(iii) of the Freedom of Information Law requires the Committee on Open Government to promulgate regulations concerning the procedural implementation of the Law (see 21 NYCRR Part 1401). In turn, §87(1) requires agencies to adopt rules and regulations consistent with the Law and the Committee's regulations. Section 1401.2 of the regulations, provides in relevant part that:
"(a) The governing body of a public corporation and the head of an executive agency or governing body of other agencies shall be responsible for insuring compliance with the regulations herein, and shall designate one or more persons as records access officer by name or by specific job title and business address, who shall have the duty of coordinating agency response to public requests for access to records. The designation of one or more records access officers shall not be construed to prohibit officials who have in the past been authorized to make records or information available to the public from continuing to do so.
(b) The records access officer is responsible for assuring that agency personnel...
(3) Upon locating the records, take one of the following actions:
(i) make records promptly available for inspection; or (ii) deny access to the records in whole or in part and explain in writing the reasons therefor..."
In view of the foregoing, the records access officer has the "duty of coordinating agency response" to requests and assuring that agency personnel act appropriately in response to requests. Section 1401.4 of the regulations entitled "Hours for public inspection" states 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."
In sum, although the Board may choose to distribute records at meetings to those in attendance, I do not believe that it would be obliged to do so. Rather, the Board could, in my opinion, require that an applicant request the records in writing during the time set forth in its rules and regulations.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Heather Eichelbaum