March 3, 1997
Ms. Linda M. LeMoyne
6 Big Tree Street
Livonia, NY 14487
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. LeMoyne:
I have received your letter of January 30 concerning your attempts to view records of the Village of Livonia.
Most recently, the Village informed you that the records would be made available on certain dates, but in each instance, permission to inspect the records was for "a few hours in a specific day." You wrote that, in your opinion, "once the records have been located", you "should be able to view them at any time during regular business hours." As such, you have sought an opinion concerning whether the Village "is obligated to open these records to [you] at any time during regular business hours until [you] complete [your] inspection."
Based upon the regulations issued by the Committee on Open Government and an appellate court decision, you have the right to inspect the records during the entirety of the Village's regular business hours.
In this regard, by way of background, §89(1)(b)(iii) of the Freedom of Information Law requires the Committee 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."
Relevant to your inquiry and the foregoing is a decision rendered by the Appellate Division. 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].
In an effort to enhance compliance with and understanding of the Freedom of Information Law, copies of this opinion will be forwarded to Village officials.
I hope that I have been of assistance.
Robert J. Freeman Executive Director
cc: Board of Trustees
Debra K. Stewart, Village Clerk