February 14, 1996
Ms. Lillian B. Griffin
P.O. Box 60
Lake Grove, NY 11755-0060
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 Ms. Griffin:
I have received your undated letter, which reached this office on January 29.
You described a series of problems relating to your efforts to inspect voter registration books maintained by the Village of Lake Grove. Specifically, the Village imposed time limitations regarding your ability to inspect the records. Further, the Village apparently denied access to a list of registered voters, which differs from the list of registered voters maintained by the County Board of Elections.
In this regard, I offer the following comments.
First, by way of background, §89(1)(b)(iii) of the Freedom of Information Law requires the Committee on Open Government to promulgate regulations concerning the procedural implementation of the Law (see 21 NYCRR Part 1401). In turn, §87(1) requires agencies to adopt rules and regulations consistent with the Law and the Committee's regulations.
Section 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..."
Section 1401.4 of the regulations, entitled "Hours for public inspection", states that:
"(a) Each agency shall accept requests for public access to records and produce records during all hours they are regularly open for business.
(b) In agencies which do not have daily regular business hours, a written procedure shall be established by which a person may arrange an appointment to inspect and copy records. Such procedure shall include the name, position, address and phone number of the party to be contacted for the purpose of making an appointment."
Relevant to your inquiry and the foregoing is a decision rendered by the Appellate Division, Second Department, which includes Lake Grove. Among the issues was the validity of a similar limitation regarding the time permitted to inspect records established by a village pursuant to regulation. The Court held that the village was required to enable the public to inspect records during its regular business hours, stating that:
"...to the extent that Regulation 6 has been interpreted as permitting the Village Clerk to limit the hours during which public documents can be inspected to a period of time less than the business hours of the Clerk's office, it is violative of the Freedom of Information Law..." [Murtha v. Leonard, 620 NYS 2d 101 (1994), 210 AD 2d 411].
Second, the Freedom of Information Law pertains to agency records, and §86(4) of that statute defines the term "record" expansively to mean:
"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."
Therefore, even when a different agency, i.e., a county board of elections, maintains the same records as the Village (which does not appear to be so in this instance), the Village records would be subject to the Freedom of Information Law, and the Village would be required to respond to a request for such records.
Lastly, 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, a voter registration list or equivalent records that might be used to comprise such a list would be available, for none of the grounds for denial could justifiably be cited to withhold the records.
In an effort to enhance compliance with and understanding of the Freedom of Information Law, copies of this opinion will be sent to Village officials.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Board of Trustees
Marian J. Zetterberg