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January 12, 1996

 

Mr. Walter 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.

Dear Mr. Greening:

I have received your letter of December 29 in which you raised a series of questions concerning an agency's responsibilities under the Freedom of Information Law. Having reviewed the opinion addressed to you on December 26, I believe that most of the questions were answered, either directly or implicitly, in that response.

A point not clearly made, however, is that an agency's records access officer is not required to be present or participate personally with respect to every facet of dealing with a request made under the Freedom of Information Law.

In my opinion, the initial responsibility to deal with requests is borne by an agency's records access officer, and the regulations promulgated by the Committee on Open Government (21 NYCRR Part 1401) provide direction concerning the designation and duties of a records access officer. Specifically, §1401.2 of the regulations 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."

Based on the foregoing, I believe that the records access officer has the duty of coordinating responses to requests. As such, the records access officer may designate staff to carry out functions associated with the implementation of the Freedom of Information Law.

Section 1401.2(b) of the regulations describes the duties of a records access officer and states in part that:

"The records access Officer is responsible for assuring that agency personnel:

(1) Maintain an up-to-date subject matter list. (2) Assist the requester in identifying requested records, if necessary. (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. (4) Upon request for copies of records: (i) make a copy available upon payment or offer to pay established fees, if any; or (ii) permit the requester to copy those records. (5) Upon request, certify that a record is a true copy. (6) Upon failure to locate the records, certify that: (i) the agency is not the custodian for such records; or (ii) the records of which the agency is a custodian cannot be found after diligent search."

Finally, it is reiterated that the notion of reasonableness is pertinent. For instance, in your final question, you asked whether a school can deny access to records that have been located and retrieved "because school was delayed due to snow, and the Records Access Officer is extremely busy." If the opening of school is two hours late, if some members of staff are late or absent, and if staff is required to perform increased, different or unusual functions, it would be reasonable, in my view, to expect that some activities routinely performed might be delayed or even cancelled or postponed. While I am not suggesting that making records available should be cancelled, there may, depending upon the circumstances, be understandable reasons for delay.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Beverly L. Ouderkirk, Superintendent of Schools
Susan P. Reichardt, Records Access Officer