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May 2, 1996

 

 

Mr. Giacomo Russo
R.D. #3, Route 9
Malta, NY 12020

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. Russo:

Your letter of April 28 addressed to Secretary of State Treadwell has been forwarded to the Committee on Open Government. The Committee, a unit of the Department of State upon which the Secretary serves as a member, is authorized to offer advisory opinions concerning the Freedom of Information Law. As indicated above, the staff of the Committee is permitted to respond on behalf of its members.

You have sought opinions concerning the adequacy of responses to requests directed to the Departments of Law and Environmental Conservation.

In the case of the former, the Records Access Officer for the Department of Law acknowledged the receipt of your request in a timely manner and indicated that "a response to your inquiry will be forwarded as soon as possible." You contend that the response should have included reference to an approximate date when the request would be granted or denied. I agree.

The Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3) of that statute provides 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..."

Based upon the foregoing, I believe that agencies, in the case of routine requests, should ordinarily have the ability to grant or deny access to records within five business days. If more than that period is needed, due to the possibility that other requests have been received, that other duties preclude a quick response, or because of the volume of a request, the need for consultation, the search techniques needed to locate records, or the need to review records to determine which portions should be disclosed or denied, the Law requires that an estimated date for granting or denying a request must be given in an acknowledgement to reflect those factors. Those kinds of considerations may often be present, particularly in large agencies that may have several units or perhaps regional offices.

With respect to the latter, Malcolm A. Coutant, Regional Attorney for Region 5 of the Department of Environmental Conservation, wrote that your request "is too general in nature and that you are seeking legal research concerning the fundamental principles of Federal and State government authority, both as it relates to private property and the individual," and that the Freedom of Information Law does not require that agencies conduct legal research. Your request states as follows:

"I request certified copies of the following public records either produced, generated, maintained, required to be filed with or to be in the possession of that entity addressed above by either, Federal or State statutes, Municipal corporation rules, regulations, and/or ordinances:

Those powers of attorney, contracts, agreements, letters of intent, permits, licenses, revocations, waivers or discharge of; Inalienable, Constitutional, Common Law Rights or of the Uniform Commercial Codes, or any other lawful instrument which either bequested, gifted, granted, surrendered, acknowledged or gave to the above identified entity the following:

A. Title, interest, control, jurisdiction or sovereignty to, in or over my property being described as: Tax map lot #'s 217-1-29, 217-2-49 being in the town of Malta, New York and declared to be part of lot number one of the subdivision of Lot 13 of the 5th General Allotment of the Patent of Kayaderosseras, filed at the Saratoga County Clerks Office located in Ballston Spa, New York.

B. Interest, control, jurisdiction and sovereignty to, in of and over my private person and any and all members of my immediate family.

C. Interest, control, jurisdiction and sovereignty to, of and over my personal and privacy properties.

D. Interest, control, jurisdiction over PRIVATE, PERSONAL, NATURAL, ABSOLUTE, SUBSTANTIVE, INALIENABLE RIGHTS belonging to me and\my immediate family pursuant to THE FOUNDING ORGANIC DOCUMENTS OF THIS REPUBLIC (9th & 10th Amend.; 28 USC §1602-1611; ETC.)" (emphasis yours).

While your intent is not completely clear, it appears that you are requesting copies of records maintained by the agencies pertaining to your real property, to you, or to any member of your immediate family. If my interpretation is accurate, I believe that the primary issue involves the extent to which the requests "reasonably describe" the records sought as required by §89(3) of the Freedom of Information Law. I point out that it has been held by the Court of Appeals that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

The Court in Konigsberg found that the agency could not reject the request due to its breadth and also stated that:

"respondents have failed to supply any proof whatsoever as to the nature - or even the existence - of their indexing system: whether the Department's files were indexed in a manner that would enable the identification and location of documents in their possession (cf. National Cable Tel. Assn. v Federal Communications Commn., 479 F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability under Federal Freedom of Information Act, 5 USC section 552 (a) (3), may be presented where agency's indexing system was such that 'the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency'])" (id. at 250).

In my view, whether a request reasonably describes the records sought, as suggested by the Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing or record-keeping system. In Konigsberg, it appears that the agency was able to locate the records on the basis of an inmate's name and identification number.

While I am unfamiliar with the recordkeeping systems of the agencies to which you referred, to extent that the records sought can be located with reasonable effort, I believe that the request would have met the requirement of reasonably describing the records. On the other hand, if the records are not maintained in a manner that permits their retrieval except by reviewing perhaps thousands of records individually in an effort to locate those falling within the scope of the request, to that extent, the request would not in my opinion meet the standard of reasonably describing the records. Further, in the context of the request, a real question involves, very simply, where does an agency begin to look for records. In the case of the Department of Environmental Conservation, it is possible that records falling within the scope of your request may be maintained at both regional and main offices. Moreover, merely by means of a review of the portion of the State Directory relating to that agency, it is possible that records pertaining to your property, to you or to your family members might be maintained by a variety of units within Department. In some instances, records might be maintained by tax map lot number, in others, by name, in still others by other means. For example, correspondence between members of the public and an office within an agency might be filed by name or perhaps chronologically. In the latter case, there may be no feasible way of locating records in which names or locations of property appear.

Similarly, I am unaware of the extent to which the agencies maintain information electronically. It has been advised that if information sought is available under the Freedom of Information Law and may be retrieved by means of existing computer programs, an agency is required to disclose the information. In that kind of situation, the agency in my view would merely be retrieving data that it has the capacity to retrieve. Disclosure may be accomplished either by printing out the data on paper or perhaps by duplicating the data on another storage mechanism, such as a computer tape or disk. On the other hand, if information sought can be retrieved from a computer or other storage medium only by means of new programming or the alteration of existing programs, those steps would, in my opinion, be the equivalent of creating a new record. Since §89(3) of the Freedom of Information Law states that an agency is not required to create records in response to a request, I do not believe that an agency would be required to reprogram or develop new programs to retrieve information that would otherwise be available [see Guerrier v. Hernandez-Cuebas, 165 AD 2d 218 (1991)].

In sum, the issue in my opinion involves the extent to which your request met the standard of reasonably describing the records sought. It is suggested that ensuing requests be more focused and that you include additional details wherever possible in order to enable agency staff to locate and identify the records sought.

I hope that the foregoing serves to clarify your understanding of the Freedom of Information Law and that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Marin E. Gibson
Malcolm A. Coutant
Alexander S. Treadwell