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June 9, 1995

 

 

Mr. John B. Schamel
NEA/New York Field Representative
Elmira Service Center
Mark Twain Building #200
North Main and West Gray
Elmira, NY 14901

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 Mr. Schamel:

I have received your letter of May 16 and the correspondence related to it. The materials pertain to the treatment of a request made on April 12 to the Elmira City School District for a variety of records.

The request involves bills, cancelled checks, receipts and similar records reflective of expenses incurred or payments made concerning athletic fields, travel by District officials, catering for Board meetings, legal services, as well as records pertaining to improvements made in the Board room and the Superintendent's office and "writings that set forth the terms and conditions of employment for certain administrators." The request as it pertains to expenditures includes the period of July 1, 1991 through the date of the request. The receipt of the request was acknowledged on April 19, and you were informed that the District "should be able to provide you with a further response no later than May 27, 1995." You considered that response to be a denial and appealed on April 24. The Superintendent wrote to you approximately a week later and contended that your appeal was "premature." She added that:

"As indicated in our letter responding to your request, your request was acknowledged and we are currently searching our records to determine what materials we have which would be responsive. Please be assured that this will take place by the date indicated in that letter. To the extent that responsive documents can be found before that date, you will be contacted and they will be made available for your review."

You have raised a series of questions in relation to the matter. In this regard, I offer the following comments.

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..." 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. Under the circumstances, I do not believe that the initial response constituted a denial, but rather an acknowledgement of the receipt of your request that was consistent with §89(3). That being so, the Superintendent's response was, in my view, appropriate. Whether May 27 represented a reasonable time for fulfillment of your request would be dependent upon the kinds of factors described above. However, particularly in the case of a voluminous request such as yours, I believe that it would be proper for an agency to disclose quickly or on an ongoing basis those records that are readily retrievable.

A potential issue is whether each aspect of your request "reasonably describes" the records sought as required by §89(3) of the Freedom of Information Law. It has been held by the State's highest court that a request reasonably describes the records when the agency can locate and identify the records based on the terms of a request, and that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [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 system. In the context of your requests, I am unaware of the means by which the District maintains or files its records. In some instances, whether they are maintained manually or electronically, certain of the records may be readily retrievable; if, on the other hand, the records sought cannot be located except by reviewing, one by one, thousands of items, that aspect of the request, absent fault on your part or that of the District, would not in my opinion meet the standard of reasonably describing the records.

Lastly, in a telephone call of May 30, you indicated that the District had disclosed many of the records sought, but that the response was incomplete. You referred, for example, to the full disclosure of receipts for air travel pertaining to several administrators, but no disclosure concerning another.

As a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law.

From my perspective, records pertaining to billing or payments made to officers, employees or others are accessible, except to the extent that disclosure would result in "an unwarranted invasion of personal privacy" [see Freedom of Information Law, §§87(2)(b) and 89(2)(b)]. If, for example, records include social security numbers or home addresses, those details could be deleted to protect privacy, while the remainder would be accessible.

Although travel vouchers and similar or related records might identify specific officers or employees, the courts have made it clear that public officers and employees enjoy a lesser degree of privacy than others, for it has been determined in various contexts that they are required to be accountable than others. As a general rule, it has been found that records that are relevant to the performance of public officers' or employees' duties are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy [see Capital Newspapers v. Burns, 67 NY 2d 562 (1986); Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe, 45 NY 2d 954 (1978); Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, October 30, 1980].

If you believe that records have been improperly withheld, you could appeal a denial of access pursuant to §89(4)(a) of the Freedom of Information Law and/or discuss the matter with the appropriate officials of the District.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Dr. Ann B. Fuqua, Superintendent
Robert S. Gosden, Assistant Superintendent