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OML-AO-5291

VIA EMAIL

From: Jobin-Davis, Camille (DOS)
Sent: Friday, January 27, 2012 3:39 PM
To:
Subject: RE: Fairport Library

 

Although I printed a copy of your January 23, 2012 email, somehow I have misplaced the electronic
copy. Would you please forward it to me again? I would like to send it to the Library Board President
electronically. Thank you.

In response to your January 26 email, when an agency fails to provide records in response to a
request, an applicant may appeal – essentially the agency has denied access to records without
providing a legal basis therefore. My suggestion is that you appeal. Please see the following link:
http://www.dos.state.ny.us/coog/explanation.html

An agency is not required to create a document in response to a FOIL request, so if there is an issue
with a lack of record that is responsive to the request, in my opinion the agency should so indicate.
Further, 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 Ashall certify that it does not have
possession of such record or that such record cannot be found after diligent search.@ It is emphasized
that when a certification is requested, an agency Ashall@ prepare the certification; it is obliged to do so.
I hope it helps.

Camille

Camille S. Jobin-Davis, Esq.
Assistant Director
NYS Committee on Open Government
Department of State
99 Washington Ave, Suite 650
Albany NY 12231

Tel: 518-474-2518
Fax: 518-474-1927
www.dos.ny.gov/coog