Mr. Walter F. Greening
68 West Corbett Road
Montgomery, NY 12549
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. Greening:
I have received your letters of November 26 and December 5, as well as the correspondence accompanying them. In addition, related materials have been forwarded by the Valley Central School District.
You referred to your "battle" and "continuing plight" concerning your efforts to gain access to records of the Valley Central School District. The latest in the series of events involves notification that certain records you requested were available to you. Upon your arrival at District offices, however, you were informed that you could not review the files then, because no staff was available "to sit with [you] during [your] review."
In this regard, I am well aware of the strain in the relationship between you and the District. Further, I am hesitant to offer any commentary, because it seems that my remarks are frequently interpreted in a one-sided manner by either you or District officials. Similarly, following telephone conversations with either you or District personnel, often other calls are made due to that kind of interpretation or construction of my remarks. In the latest items of correspondence, issues of veracity were raised by both you and a District employee, and I do not feel that I can properly adjudge what the truth or perhaps the whole truth might be. Nevertheless, by means of the following brief remarks, I will attempt to address the issues as clearly as possible.
First, it appears that you and the District have engaged in a tacit agreement that you may inspect records in conjunction with a procedure under which an appointment is made in advance of inspection. In my opinion, that is reasonable, so long as the District offers a time or times to review records promptly and in a manner consistent with the intent of the Freedom of Information Law. I note that the legislative declaration appearing at the beginning of that statute provides that "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible." However, I do not believe that an agency can be expected to respond instantly to a request in every case or produce records instantly absent an appointment or indication in advance of the inspection that the records will continually be available for review. Requested records may be in use, for example, or staff may be unavailable to retrieve the records on demand.
Further, while an agency is not required to do so, I believe that it may have a staff person observe an applicant for records while the records are being inspected. Agencies have a responsibility to ensure that the custody and integrity of their records is maintained (see Arts and Cultural Affairs Law, §57.25).
Second, assuming that an appointment is made, I believe that an agency is required to permit the applicant to inspect records during the period of the agency's regular business hours. In a recent decision rendered by the Appellate Division, Second Department, which I believe includes the Valley Central School District within its jurisdiction, the Court rejected a portion of an agency's rules that limited the time of inspection during a business day. In referring to the Village's rule on the matter, the Court stated that:
"...to the extent that Regulation 6 has been interpreted to limit the hours during which public documents can be inspected to a period of time less that the business hours of the Clerk's office, it is violative of the Freedom of Information Law (see, Public Officers Law § 87, et seq.) and the regulations promulgated thereunder (see, 21 NYCRR 1401.4[a])" [Murtha v. Leonard, 210 AD 2d 411, 620 NYS 2d 101, 102 (1994)].
Therefore, if a mutually agreeable date and time can be set for the inspection of records, I believe that you would have the right to inspect them for the remainder of that day's business hours.
Implicit in the foregoing is the notion of reasonableness. It would be unreasonable in my view for the District to permit your inspection of a voluminous number of records to begin a 4 p.m. if its business hours end at 4:30. However, it would be equally unreasonable in my opinion for you to expect to have the opportunity to inspect records day after day for the entirety of the District's business hours.
A copy of this response will be sent to the District, and I hope that it will be read and interpreted in the spirit in which it is offered, specifically, with a desire to be fair and objective, and in a manner that gives effect to the intent of the Freedom of Information Law coupled with recognition of the responsibilities and resources of the District.
Robert J. Freeman
cc: Beverly L. Ouderkirk, Superintendent of Schools
Susan P. Reichardt, Records Access Officer