August 8, 1996
Mr. John W. Kane
165 West Bush Road
Gloversville, NY 12078
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. Kane:
I have received your letter of August 5 and the materials attached to it. Once again, you have sought my views concerning your requests directed to the Fulton County Industrial Development Agency. Because opinions have been rendered in the past dealing with the substance of the matters that you raised, I do not believe it is necessary to revisit them.
However, you asked that I comment "as to the refusal of the records access officer to certify the response to [your] request." From my perspective, based on the reply by the records access officer, it appears that he intended his statement to be a certification. Specifically, he referred to his "third verification" and wrote as follows: "I hereby state that I have made a diligent search for the referenced record and have found no record or entry of it at the offices of the Fulton County Industrial Development Agency."
In this regard, when an agency indicates that it does not maintain or cannot locate a record, an applicant for the record may seek a certification to that effect. Section 89(3) of the Freedom of Information Law provides in part that, in such a situation, on request, an agency "shall certify that it does not have possession of such record or that such record cannot be found after diligent search."
I point out that in Key v. Hynes [613 NYS 2d 926, 205 AD 2d 779 (1994)], it was found that a court could not validly accept conclusory allegations as a substitute for proof that an agency could not locate a record after having made a "diligent search". However, in another decision, such an allegation was found to be sufficient when "the employee who conducted the actual search for the documents in question submitted an affidavit which provided an adequate basis upon which to conclude that a 'diligent search' for the documents had been made" [Thomas v. Records Access Officer, 613 NYS 2d 929, 205 AD 2d 786 (1994)].
Nothing in the Freedom of Information Law specifies the form of a certification. The court in Thomas referred to an affidavit. In this instance, the records access officer provided a "verification." For purposes of the Freedom of Information Law, I do not believe that there would be any substantial distinction between an affidavit and the verification given by the records access officer.
It is noted that the regulations promulgated by the Committee specify that no fee can be charged for a certification requested under the Freedom of Information Law [21 NYCRR §1401.8(a)(3)].
I hope that I have been of assistance.
Robert J. Freeman
cc: James E. Mraz, Records Access Officer