March 10, 1997
Sandra Boss, R.N.
615 San Dieguito Drive
Encinitas, CA 92024
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. Boss:
I have received your letter of February 1, which reached this office on February 10. You have sought assistance in obtaining information from the Oneida County Cooperative Extension. The correspondence indicates that you have faced a series of delays in your efforts to acquire the information, and you asked how you can "lodge a complaint."
In this regard, the Committee on Open Government is authorized to provide advice and opinions concerning the Freedom of Information Law. In an effort to assist you, your letter will be treated as a complaint and a request for guidance.
First, I note that the Freedom of Information Law pertains to agency records, and that §86(3) of that statute defines the term "agency" to mean:
"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."
According to §224(8)(b) of the County Law, a county extension service association is a "subordinate governmental agency" whose organization and administration are "approved by Cornell University as agent for the state." As such, I believe that the Cooperative Extension is an "agency" required to comply with the Freedom of Information Law, for it performs a governmental function for the State and, in this instance, Oneida County.
Second, the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3) of the Freedom of Information Law states 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..."
If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, or if an agency delays responding for an unreasonable time after it acknowledges that a request has been received, a request may, in my opinion, be considered to have been constructively denied. In such a circumstance, I believe that the denial may be appealed in accordance with §89(4)(a) of the Freedom of Information Law. That provision states in relevant part that:
"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."
In addition, it has been held that when an appeal is made but a determination is not rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of Information Law, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].
Third, since you did not describe the kind of information in which you are interested, I point out that the Freedom of Information Law pertains to existing records and states in §89(3) that an agency is not required to create a record in response to a request for records. Therefore, to the extent that the information sought does not exist in the form of a record or records, the Cooperative Extension would not be obliged to create a new record on your behalf. Insofar as the Cooperative Extension maintains the records of your interest, 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.
Lastly, the case to which you referred involving Monticello related to an award of attorneys' fees in a case arising under the Open Meetings Law. Although attorneys' fees may be awarded under the Freedom of Information Law [see §89(4)(c)], the standards under which a court may award attorneys' fees differ from those applicable under the Open Meetings Law.
In an effort to enhance compliance with and understanding of the Freedom of Information Law, a copy of this opinion will be forwarded to Oneida County Cooperative Extension.
I hope that I have been of assistance.
Robert J. Freeman
cc: Oneida Cooperative Extension