John C. Cody, Esq.
Attorneys and Counselors At Law
217 Delaware Avenue
Delmar, NY 12054
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. Cody:
I have received your letter of July 12 and the materials appended to it. You have sought an advisory opinion concerning a series of issues that have arisen in relation to your efforts to gain access to records of the City of Gloversville.
It is noted at the outset that the materials indicate that you serve as counsel for forty-three plaintiffs in a lawsuit against the City of Gloversville, and you informed me by phone that you have served an Order to Show Cause relating to the conduct of a law firm that represents the City in that litigation. As a matter of policy, as well as fairness, the Committee on Open Government does not prepare advisory opinions when a party to litigation commenced under the Freedom of Information Law seeks such an opinion. Based on my discussion of that concern with you, although litigation has been commenced regarding the City of Gloversville, you specified that you have not initiated litigation under the Freedom of Information Law. Based upon that representation, and in an effort to educate, persuade and obviate the need for additional litigation, I will attempt to address the issues that you raised.
Rather than reciting a lengthy series of facts, I will refer to them in the context of issues that you presented as follows:
"1) The propriety of the City of Gloversville's delaying tactics; 2) The City Attorney's last-minute delegation of her authority to Goodwin, Procter & Hoar; 3) The City's refusal to allow the FOIL-requester to make his own photocopies, despite the clear language in the City Code allowing same; 4) The improper placement of the FOIL request into a litigation context, with the presence of litigation attorney and court reporter, despite precedent which sees FOIL as a private citizen request and the existence of litigation irrelevant thereto; 5) The impropriety of setting aside a courtroom as the place for document review; and 6) The legality, or lack thereof, of a second and separate exemptability review being conducted by outside counsel once the City's own review was completed."
In this regard, having requested records on April 13 in writing, you received an acknowledgement of the receipt of the request from the City Attorney dated April 17 in which she wrote that "[d]ue to the broad scope of the FOIL request, it will take a significant period of time to review said documents and to determine what is available and what is exempted pursuant to the Freedom of Information Law." Having received no further response, you transmitted "follow-up letters" to the City on May 23. The City responded on May 25, stating that you could anticipate that an appointment could likely be made to review the records "in mid-June when our review [of the exemptability of the documents] will be completed." When mid-June passed without receiving a response, you again contacted the City Attorney. Two days later, on June 28, you were contacted by phone by a paralegal employed in the City Attorney's office, and you scheduled a date, July 11 at 10 a.m., to review the records at City Hall.
From my perspective, the facts described in the preceding paragraph indicate that the City acted in a manner inconsistent with the Freedom of Information Law in terms of the requirements relating to the time and manner in which agencies must respond to requests. Section 89(3) of that statute 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..."
If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, or if an agency delays responding for an unreasonable time after it acknowledges that a request has been received, a request may, in my opinion, be considered to have been constructively denied. Similarly, if an agency acknowledges the receipt of a request in writing but fails to provide a written "statement of the approximate date when such request will be granted or denied," the agency in my view would have failed to comply with §89(3). Although receipt of your request was acknowledged in writing, the initial written acknowledgement provided no estimated date indicating when a determination concerning access would be made. In a somewhat analogous situation in which the court found that a request was constructively denied, it was stated that:
"The acknowledgement letters in this proceeding neither granted nor denied petitioner's request nor approximated a determination date. Rather, the letters were open ended as to time as they stated, 'that a period of time would be required to ascertain whether such documents do exist, and if they did, whether they qualify for inspection'...
"It should also be noted that petitioner did not sit idle during this period but rather made numerous efforts to obtain a decision from respondent including the submission of a follow up letter to the Records Access Officer and submission of various requests for said records with the different offices of the Department of Transportation.
"Therefore, this court finds that respondent is estopped from asserting that this proceeding is improper due to petitioner's failure to appeal the denial of access to records within 30 days to the agency head, as provided in Public Officers Law §89(4)(a)" (Bernstein v. City of New York, Supreme Court, NYLJ, November 7, 1990).
When a request is constructively denied or denied in writing, I believe that the denial may be appealed in accordance with §89(4)(a) of the Freedom of Information Law. That provision states in relevant part that:
"any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."
In addition, it has been held that when an appeal is made but a determination is not rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of Information Law, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].
With regard to the City Attorney's "last-minute delegation of her authority" to a law firm, I believe that the regulations promulgated by the Committee on Open Government and the Gloversville City Code may be pertinent. Section 89(1)(b)(iii) of the Freedom of Information Law requires the Committee to promulgate regulations concerning the procedural implementation of the Law (see 21 NYCRR Part 1401). In turn, §87(1) requires the governing body of a public corporation, i.e., a city council, to adopt rules and regulations consistent with the Law and the Committee's regulations.
Relevant to your inquiry is §1401.2 of the regulations, which 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. Similarly, §1401.7 of the regulations requires that the governing body of a public corporation determine appeals or designate a person or body to do so on its behalf.
Sections 221-2 and 221-8 of the Gloversville Code deal respectively with the designation of a records access officer and a "person or persons or body" to determine appeals. However, the Code does not identify either a records access officer or an appeals person or body. If the City Attorney is the designated records access officer, as part of her duty of coordinating the City's response to the request, it appears that she could validly have delegated her authority to the law firm. If, however, she has not been so designated, I believe that the records access officer should have coordinated the response to your request.
I note that the provisions of the City Code pertaining to the implementation of the Freedom of Information Law were adopted in February of 1975, soon after the enactment of the original Freedom of Information Law. That statute was repealed and replaced with the current law, which became effective in 1978. Consequently, several aspects of the Code are out of date and inconsistent with the current law.
With respect to the City's refusal to permit you to use your own photocopier, "despite the clear language in the City Code allowing same", that language, in my view, is not entirely clear. Section 221-7(B) of the Code states that a "requester may also make a copy of the records he inspects." Whether that provision envisioned the use of a personal photocopier by a requester is unknown to me. In a recent decision in which a small village with limited staff, space and facilities adopted rules prohibiting requesters from using their own photocopiers, it was held that the rules "constitute a valid and rational exercise of the Village's authority under Public Officers Law §87(1)(b)" [Murtha v. Leonard, 620 NYS 2d 101,102;___ AD2d___ (1994)]. In my opinion, the decision was based upon the reasonableness of the rules in view of attendant facts and circumstances. In situations in which an agency has sufficient resources to permit the use of a personal photocopier in a non-disruptive manner, it might be found that a prohibition would be invalid, particularly if an agency's rules or code provisions do not specifically prohibit the use of those devices. In this instance, the City Code is silent regarding the use of a photocopier by a requester.
The remaining issues pertain to the alleged "improper placement of the FOIL request into a litigation context" via the presence of the City's litigation attorney and a court reporter, the transfer of the records to a courtroom for review, and the propriety "of a second and separate exemptability review being conducted by outside counsel once the City's own review was completed."
In this regard, the City Code in §221-4 states that records are available for inspection in City Hall, and you informed me that the courtroom is in City Hall. Therefore, it does not appear that the choice of a courtroom for your inspection of the records, particularly if they are voluminous, would be unreasonable or inconsistent with the City Code. Further, I do not believe that the presence of others while records are inspected is generally unreasonable or unusual. Frequently agencies assign staff to oversee an applicant's inspection of records to ensure the custody and integrity of records or to provide assistance. However, I do not believe that it was necessary or appropriate for the City to assign an attorney to review records a second time while you sought to inspect the records. The records had apparently been reviewed already by a City official or officials for the purpose of determining which records or portions of records must be disclosed. If the City wanted its litigation attorney to review those records prior to your appointment to inspect them, certainly it could have done so. The City's procedure in this instance appears to have added a step that does not exist in the Freedom of Information Law. It is noted that in a case involving a local law that included an additional "tier" in the appeal procedure, it was found that the "prerequisite additional restrictions" were invalid (Reese v. Mahoney, Supreme Court, Erie County, June 28, 1984).
Further, as stated by the Court of Appeals in a case involving a request made under the Freedom of Information Law by a person involved in litigation against an agency: "Access to records of a government agency under the Freedom of Information Law (FOIL) (Public Officers Law, Article 6) is not affected by the fact that there is pending or potential litigation between the person making the request and the agency" [Farbman v. NYC Health and Hospitals Corporation, 62 NY 2d 75, 78 (1984)]. Similarly, in an earlier decision, the Court of Appeals determined that "the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and is neither enhanced...nor restricted...because he is also a litigant or potential litigant" [Matter of John P. v. Whalen, 54 NY 2d 89, 99 (1980)]. The Court in Farbman, supra, discussed the distinction between the use of the Freedom of Information Law as opposed to the use of discovery in Article 31 of the Civil Practice Law and Rules. Specifically, it was found that:
"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on governmental decision-making, its ambit is not confined to records actually used in the decision-making process (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request.
"CPLR article 31 proceeds under a different premise, and serves quite different concerns. While speaking also of 'full disclosure' article 31 is plainly more restrictive than FOIL. Access to records under CPLR depends on status and need. With goals of promoting both the ascertainment of truth at trial and the prompt disposition of actions (Allen v. Crowell-Collier Pub. Co., 21 NY 2d 403, 407), discovery is at the outset limited to that which is 'material and necessary in the prosecution or defense of an action'" [see Farbman, supra, at 80].
Based upon the foregoing, the pendency of litigation would not, in my opinion, affect either the rights of the public or a litigant under the Freedom of Information Law. An agency's careful review of records sought under the Freedom of Information Law by a person involved in litigation against the agency is understandable. Nevertheless, I believe that the City should have engaged in its careful review prior to and not during your appointment to inspect the records at a time that was set by the City. Moreover, in the context of the decision rendered by the Court of Appeals, your request under the Freedom of Information Law was made as a member of the public; your rights of access to the records, therefore, should be unaffected by the fact that you are also a litigant.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Joan A. Thompson, City Attorney