FOIL-AO-18949

August 20, 2012

E-Mail

TO:

FROM:  Camille S. Jobin-Davis, Assistant Director

The staff of the Committee on Open Government is authorized to issue advisory opinions.  The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear:

This is in response to your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the Pelham Unified Free School District.  In February 2012 you asked for “any and all” email communications between Martin Brooks and Dr. Dennis Lauro.  Dr. Lauro is the District’s appeals officer, with whom you have corresponded regarding your appeals.  You indicated that you were initially provided with only one series of emails, but subsequent to a second appeal to Dr. Lauro, you were provided with nearly 200 pages of records and informed that there were possibly 3,000 more responsive records that the District would not review.

In this regard, we note that first, based on the language of the law and its judicial construction, a request made for a specific document or documents, or in the example that you raise, any and all correspondence beyond that of email, does not necessarily indicate that a person seeking the record has made a valid request that must be honored by an agency. In considering the requirement that records be “reasonably described”, the Court of Appeals has held that whether or the extent to which a request meets the standard may be dependent on the nature of an agency’s filing, indexing or records retrieval mechanisms [see Konigsburg v. Coughlin, 68 NY2d 245 (1986)]. When an agency has the ability to locate and identify records sought in conjunction with its filing, indexing and retrieval mechanisms, it was found that a request meets the requirement of reasonably describing the records, irrespective of the volume of the request. By stating, however, that an agency is not required to follow “a path not already trodden” (id., 250) in its attempts to locate records, we believe that the Court determined, in essence, that agency officials are not required to search through the haystack for a needle, even if they know or surmise that the needle may be there.  In short, agency staff are not required to engage in herculean or unreasonable efforts in locating records to accommodate a person seeking records.

Based on the foregoing, since great numbers of records maintained electronically can be searched without undue effort, the question is what is required when the search identifies approximately 3,000 records, and whether the Freedom of Information Law imposes a responsibility on the agency to review all of them.  Due to advances in information technology, the District has the ability to locate, identify and retrieve those communications with reasonable effort, and is apparently able to locate and retrieve thousands of email communications through the use of certain search terms.

The content of such records differs in each such communication.  Some communications may include references to individuals, and it is possible that some aspects of those records may be redacted on the ground that disclosure would constitute “an unwarranted invasion of personal privacy” in accordance with sections 87(2)(b) and 89(2)(b) of FOIL.  It may be that some reference individual students, in which case the District would be prohibited from releasing personally identifiable information.  Virtually all of the communications would constitute “intra-agency material” falling within the scope of section 87(2)(g).  Under that provision, some aspects of those communications may be withheld, but others must be disclosed.

The point is that, to give effect to FOIL, and to respond to a request that identifies thousands of email communications, each email must be read and reviewed individually in order determine rights of access.  The time and effort needed to do so is more than substantial.  Nevertheless, based on the standard prescribed by Konigsberg, a court might determine that an agency is required to engage in an effort of that magnitude.
Your offer to receive all 3,000 emails and sort through them yourself highlights how, with modern electronic search capability, it is possible that similar requests could involve the content of a “virtual” file cabinet.  This request brings to mind an opinion rendered several years ago involving a request for all records contained in several file cabinets located in or near the office of a certain agency employee.  It was advised in that situation that the request did not reasonably describe the records, and that the guidance offered in Fisher & Fisher v. Davison (Supreme Court, New York County, September 27, 1988) was applicable. The court referred to and rejected a voluminous request, finding that:

“Petitioner’s actual demand transcends a normal or routine request by a taxpayer.   It…bring[s] in its wake an enormous administrative burden that would interfere with the day-to-day operations of an already heavily burdened bureaucracy.”

Similarly, inquiries have been directed to this office concerning requests for all email communications transmitted or received by a particular government officer or employee over a period of several years, without regard to subject matter or content.  In the case of many officers or employees, there would be thousands of email communications involving scores of topics.  Review of those communications to ascertain rights of access would, in the words of the decision cited above, “transcend a normal…request…”

In consideration of the realities associated with the potential of information technology and the ability to search for, locate and retrieve many thousands of records, we believe that the standard in FOIL, reasonably describing records sought in accordance with the guidance offered by the Court of Appeals in 1986, is outdated and merits modification.

From our perspective, every law must be implemented in a manner that gives reasonable effect to its intent, and we point out that in its statement of legislative intent, §84 of the Freedom of Information Law states that "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible."
Accordingly, until and unless the Law is amended to focus on the reality that the high volume of material that can be located with reasonable effort through electronic means, it is our opinion that it is unreasonable to require an agency to review thousands of records that may contain a particular search term or termterms in response to a Freedom of Information Law request.  As is the case here, it would be an unreasonable burden, in our view, to require an agency to review perhaps thousands of individual records in order to identify those portions of such records that are required to be made available.

Therefore, while you could initiate a judicial proceeding, it may be more efficient to narrow the scope of your request.

With respect to your request that a search be conducted for paper records that contain the identified terms, we rely on the Court’s ruling in Konigsberg, discussed earlier, in support of our opinion that the agency has a responsibility to locate records based on the indexing system in place at the time of the request.  If the agency is able to locate the requested records with reasonable effort, it is required to do so; however, nothing in the Law would require the agency to search every paper record in its custody to locate those that contain certain terms.
With respect to your questions regarding certification, 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.”  It is emphasized that when a certification is requested, an agency “shall” prepare the certification; it is obliged to do so.

Finally, with respect to the amount of time permitted to respond to an appeal, we reference §89(4)(b), which states that a failure to determine an appeal within ten business days of the receipt of an appeal constitutes a denial of the appeal. In that circumstance, 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.

We hope that this is helpful.

CSJ:sb
cc: Dr.  Dennis Lauro, Superintendent, Pelham Public Schools