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March 9, 1995

 

 

Hon. Kathleen A. Marchione
Clerk
County of Saratoga
Board of Supervisors
Ballston Spa, NY 12020

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, unless otherwise indicated.

Dear Ms. Marchione:

I have received your letter of February 9 and related correspondence. You have asked whether your response to a request made under the Freedom of Information Law by Barbara Weed, President of Farms First, was consistent with law.

As I understand the matter, Ms. Weed contends that you must grant or deny access to records within ten business days after acknowledging the receipt of a request, and that a failure to do serves as a constructive denial of access that may be appealed under §89(4)(a) of the Freedom of Information Law. It appears that her contention is based on a portion of the County's rules that she cited in her letter as follows:

"'If (Saratoga County) does not provide or deny access to record sought within five (5) business days of receipt of a request (Saratoga County) shall furnish a written acknowledgment of receipt of the request and a statement of the approximate date when the request will be granted or denied. If access to records is neither granted or denied within ten (10) business days after the date of acknowledgment of receipt of a request, the request may be construed as a denial of access that may be appealed.'" (emphasis added by Ms. Weed).

Having discussed the matter with you and others, it was suggested that the underlined sentence is applicable only when an approximate date is given and ten business days from that date transpire without any further response; another suggestion was that the reference to ten business days applies only when no approximate date is given in an acknowledgment of the receipt of a request.

While I cannot conjecture as to the intent of the Board of Supervisors concerning the provision in question, I believe that I can conjecture as to its origin.

As you are aware, §89(3) of the Freedom of Information Law requires that an agency respond to a request within five business days of the receipt of a request. If more than five business days is needed to locate or review records, the agency must acknowledge the receipt of the request and provide "a statement of the approximate date when such request will be granted or denied..." The Committee on Open Government, by means of regulations promulgated in 1978 pursuant to §89(1)(b)(iii) of the Public Officers Law, sought to insure timeliness of response by requiring agencies to grant or deny access to records within ten business days of the acknowledgement of the receipt of a request [21 NYCRR 1401.5(d)]. However, the court in Lecker v. New York City Board of Education [157 AD 2d 486 (1990)] invalidated that portion of the regulations on the ground that the Freedom of Information Law does not include a time limitation within which agencies must determine to grant or deny access to records following the acknowledgement that a request has been received. As such, the requirement in the Committee's regulations that agencies grant or deny access to records within ten business days after acknowledging the receipt of a request is no longer binding.

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, when 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.

In view of the impact of the Lecker decision on the Committee's regulations, which likely served as the basis for the County's rules, it is suggested that the portion of the County's rules that has been highlighted be reviewed. I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Barbara Weed