May 8, 1995
Mr. Harvey M. Elentuck
139-15 83 Avenue, #326
Jamaica, NY 11435-1517
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. Elentuck:
I have received your correspondence of March 24 and various related materials.
You have questioned a response to an appeal in which you were informed that a copy of your request must accompany an appeal to the Chancellor of the New York City Board of Education. In my opinion, there is no such requirement. Nothing in the Freedom of Information Law pertains directly to the matter. The regulations promulgated by the Committee on Open Government refer to a written appeal that identifies:
"(1) the date and location of requests for records;
(2) the records that were denied; and
(3) the name and return address of the appellant" [21 NYCRR §1401.7(e)].
Based upon the foregoing, again, I do not believe that an applicant must forward his or her request with an appeal.
A second issue pertains to your contention that Susan Jonides Deedy should not serve "simultaneously" as records access officer for the Board of Education and appeals officer for the Chancellor. I am not sure that Ms. Deedy serves as records access officer of the Board of Education. However, as I understand the internal functioning of the Board of Education and the Office of the Chancellor, each has different records access and appeals officers. If Ms. Deedy serves as records access officer for the Board of Education, she could not in my opinion serve as the appeals officer for the Board. As stated in the regulations, "[T]he records access officer shall not be the appeals officer" [§1401.7(b)]. The intent of the provision quoted in the previous sentence is to ensure that the records access and appeals officers are not the same person, and to ensure that an appeal is reviewed anew. Therefore, if Ms. Deedy does not serve as appeals officer for the Board of Education but rather for the Chancellor, and is not involved in reviewing appeals directed to the Board of Education, I do not believe that there is any legal impediment to her performance of those functions.
Lastly, the remaining issue appears to involve attendance records, and you asked that I address the "substantive issues" of an appeal to Chancellor Cortines. As I understand the matter, your discussions with Dr. Ronald Michaels of Community School District 24 essentially resolved the substantive issues; your appeal was based upon a constructive denial of access due to a failure to respond in a timely manner. That being so, it does not appear that an opinion regarding the substantive issues is warranted at this juncture.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Susan Jonides Deedy
Dr. Ronald Michaels
Christine J. Kicinski