June 27, 2008

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.


            I have received your letter and the materials attached to it concerning your request made under the Freedom of Information Law to Ms. Helen Baxter, Town Clerk of the Town of Tyrone.  The request involved records authorizing the establishment of the position of deputy supervisor by the Town Board.

            The Town Clerk contacted me concerning the matter, and I offer the following comments in confirmation of the discussions with her.

            In brief, the Clerk indicated that she had no personal knowledge or recollection concerning the Board’s authorization or creation of the position, and that the Board’s action to do so might have occurred decades ago.  As she informed you, the position might have been created “many years ago, at least 40 to 50 years.”  When I asked whether the minutes of Town Board meetings include a subject or topical index, she informed me that there is no subject matter index to the minutes, and that they are kept chronologically.

            The issue that arises under the Freedom of Information Law pertains to the requirement that an applicant must "reasonably describe" the records sought as required by §89(3) of that law.  It has been held that a request reasonably describes the records when the agency can locate and identify the records with reasonable effort based on the terms of a request, and that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

            Although it was found in the decision cited above that the agency could not reject the request due to its breadth, it was also stated that:

"respondents have failed to supply any proof whatsoever as to the nature - or even the existence - of their indexing system:  whether the Department's files were indexed in a manner that would enable the identification and location of documents in their possession (cf. National Cable Tel. Assn. v Federal Communications Commn., 479 F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability under Federal Freedom of Information Act, 5 USC section 552 (a) (3), may be presented where agency's indexing system was such that 'the requested documents could not be identified by retracing a path already trodden.  It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency'])" (id. at 250).

            In my view, whether a request reasonably describes the records sought, as suggested by the Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing or record-keeping system.  In Konigsberg, it appears that the agency was able to locate the records on the basis of an inmate's name and identification number. 

            In this instance, according the Clerk, there is no subject matter or other index by which she, or anyone, can locate the item of your interest with reasonable effort.  Rather, as I understand the matter, she would be required to read each page of each and every set of minutes covering a period of several decades in an attempt to locate the entry of your interest.  Based on the decision referenced earlier, which was rendered by the state’s highest court, government agency personnel are not required to engage in an effort of that nature to comply with the Freedom of Information Law.   As you know, however, minutes of meetings are accessible to the public, and you would have the right to review the minutes on your own in order to find the information of your interest.

            I hope that the foregoing serves to clarify your understanding and that I have been of assistance.



                                                                                                Robert J. Freeman
                                                                                                Executive Director


cc: Hon. Helen Baxter