November 18, 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.
As you are aware, I have received your correspondence. Please accept my apologies for the delay in response.
In brief, following your attempts to gain access to certain property tax records from the Town of Broadalbin, you expressed the view that its response was incomplete. That being so, you requested a “diligent search of their property tax records and to confirm what they sent [you] was all the FOIL’ed records that they have in their possession.” Due to its failure to do so, you asked that this office “investigate the Town of Broadalbin’s violation of the above FOIL law and write [a] decision on their behavior.”
In this regard, the Committee on Open Government is authorized to provide advice and opinions concerning the Freedom of Information Law. It does not have the resources to “investigate” and is not empowered to issue a binding decision. Nevertheless, in an effort to enhance understanding of and compliance with law, I offer the following comments and, as you request, I will send a copy of this response to the Town.
First, the Freedom of Information Law pertains to existing records and states in §89(3)(a) in relevant part that an agency, such as a town, is not required to create a record in response to a request.
Second, the regulations promulgated by the Committee, which have the force of law, require that the governing body of a municipality, in this instance, the Town Board, must designate one or more persons as “records access officer” (see 21 NYCRR §1401.2). The records access officer has the duty of coordinating an agency’s response to requests for records.
Third, in any case in which requested records are withheld in whole or in part, both the Freedom of Information Law and the regulations require that a denial of access be indicated in writing and that the person denied access informed of the right to appeal pursuant to §89(4)(a). 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 of the entity, or the person thereof designated by such 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."
Lastly, 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)(a) 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.”
I point out that early decisions concerning the certification associated with an unsuccessful search for records held that the certification was required to have been prepared by the person who actually performed the search [see e.g., Key v. Hynes, 205 AD2d 779 (1994). However, the Court of Appeals, the state’s highest court held to the contrary in Rattley v. New York City Police Department [96 NY2d 873 (2001)]. In brief, the Court found that the Freedom of Information Law does not specify the manner in which in agency must certify that records cannot be located, and that no personal statement from the person who actually conducted the search is required. Nevertheless, that decision does not absolve an agency from preparing a certification pursuant to §89(3) in instances in which the certification is requested. Based on the Committee’s regulations, an agency’s records access officer has the duty to ensure that appropriate agency staff prepare the certification described above [see §1401.2(b)].
I hope that I have been of assistance.
Robert J. Freeman
cc: Kimberly A. Verrego, Town Clerk