February 15, 1996
Captain Vincent Fitzgerald
Central Records Section
County of Suffolk
30 Yaphank Avenue
Yaphank, NY 11980
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 Captain Fitzgerald:
I have received your thoughtful letter of January 26 concerning the policy of the Suffolk County Police Department in relation to the ability of members of the public to request records under the Freedom of Information Law by fax communication.
As a general matter, it has been advised that any request made in writing that reasonably describes the records sought should satisfy the requirements of the Freedom of Information Law. Typically, if a request is made by means of a fax communication, there may be no valid basis for refusal to accept the request, and a failure to accept the request might result in an unreasonable delay in response.
Nevertheless, in view of the considerations that you described in relation to the Department's policy on the matter, I believe that the Department may validly require that requests be made under the Freedom of Information Law by submitting them either in person or by mail.
As you indicated, §87(1) of the Freedom of Information Law requires that agencies promulgate rules and regulations to implement that statute in a manner consistent with the statute and the regulations issued by the Committee on Open Government (21 NYCRR Part 1401). Neither the statute nor the Committee's regulations refers specifically to requests made by fax. Consequently, the issue in my view is whether the policy of the Department is inconsistent with the Freedom of Information Law or the Committee's regulations or is otherwise unreasonable.
You indicated that the Central Records Section of the Department maintains five fax machines that "serve specific law enforcement functions." Three are used solely to receipt arrest worksheets; one is used solely to receive modifications relative to warrants issued and recalled; the remaining machine is used only to carry out law enforcement functions, particularly for the purpose of making non-routine interdepartmental communications, as well as interdepartmental orders, directives and the like. You wrote further that your Department receives approximately 100,000 requests annually and that the receipt of requests by fax would have a "severe negative impact" on the ability to engage in authorized interdepartmental fax communications.
Based on the foregoing, from my perspective, as long as requests traditionally made are accepted, i.e., requests made in writing by mail or by personal delivery, it appears that the policy adopted by the Department is valid, for it does not unreasonably inhibit the public's ability to seek records under the Freedom of Information Law.
As you requested, a copy of this opinion will be forwarded to Mr. Frank Castagna, the individual who questioned the validity of your practice.
I hope that I have been of assistance. If you would like to discuss the matter further, please feel free to contact me.
Robert J. Freeman
cc: Frank Castagna