November 18, 1998
Mr. Theodore Kalkhuis
110 West Railroad Avenue
Garnerville, NY 10923
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
Dear Mr. Kalkhuis:
I have received your undated letter, as well as the materials attached to it, which reached this office on October 22.
You described your unsuccessful efforts in obtaining records regarding what may be
an inappropriate designation of a residence in West Haverstraw. In this regard, it is
emphasized that the functions of the Committee on Open Government involve providing
advice concerning the Freedom of Information and Open Meetings Laws. If an agency fails
to comply with law by not maintaining certain records, that issue in my view would not
involve the Freedom of Information Law. That statute deals with existing records and provides parameters concerning the extent to which they must be disclosed. Further, since
you asked which state or federal agency might have the authority to investigate the matter,
I know of none. The Village is independent, and the residents have the ability to choose its
representatives who serve on the Board of Trustees.
Insofar as the issues that you raised involve the jurisdiction of this office, I offer the following comments.
First, as a general matter, 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.
If a record exists indicating action taken following a finding of a violation of law, I
believe that such a record would be accessible, for none of the grounds for denial would be
pertinent. Similarly, the other records to which you referred, if they exist, would in my
opinion be accessible. Nevertheless, as suggested earlier, the Freedom of Information Law
pertains to existing records and does not require that an agency create or prepare a record in response to a request. 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." If you consider it worthwhile to do so, you could seek such a certification.
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)].
Lastly, you referred to your search of the Rockland Journal News and found no
reference to a meeting held by the Zoning Board of Appeals on January 8. I note that you
also referred to a hearing. Here I point out that the requirements concerning notices of
hearings and meetings differ. Frequently, there is a statutory requirement that notices of a
hearing be published as a legal notice in a newspaper. Section 104 of the Open Meetings
Law, however, specifies that notice of a meeting held under that statute does not require the
publication of a legal notice. Rather, the Open Meetings Law requires that notice of the time
and place of a meeting be given to the news media and posted prior to every meeting. Once
in receipt of notice of a meeting, a news media organization may choose to publish a notice
or report on a meeting, but there is no obligation to do so.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Trustees