March 22, 1996
Mr. Harvey M. Elentuck
139-15 83 Avenue #326
Jamaica, NY 11435-1517
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.
Dear Mr. Elentuck:
I have received your letter of March 1 and the materials attached to it.
You referred to a determination of an appeal rendered by Bruce K. Gelbard, Secretary to the New York City Board of Education, on February 8 and you asked whether Mr. Gelbard forwarded a copy of the determination to this office as required by §89(4)(a) of the Freedom of Information Law. A search of our files indicates that the record in question was not sent to this office.
Several issues that you raised have been considered in opinions previously rendered. Therefore, it is unnecessary to reiterate the points already offered. I note, however, that I am unaware of any judicial decision in which it was held that the reasons for denial cited in the determination of an appeal must be consistent with those offered by the records access officer in an initial denial. Similarly, there is nothing in the Freedom of Information Law that would require consistency in terms of the basis for denials rendered by the records access and appeals officers.
I cannot offer commentary in addition to that previously rendered with respect to meeting the standard of reasonably describing the records as required by §89(3) of the Freedom of Information Law. However, as you are aware, 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)].
Next, with regard to the "appropriate frequency and duration" of times during which you may inspect records, from my perspective, the appropriate frequency of the ability to inspect would be based upon attendant facts and circumstances. If, for example, records are constantly in use by an agency, it would be unreasonable to suggest that the agency is required to provide inspection on an ongoing basis over a period of days or weeks. With respect to the duration of the period during which records may be inspected, I point out that it has been held that an agency's rule limiting the hours during a given day during which records could be inspected "to a period of time less than the business hours of the clerk's office" contravened the Freedom of Information Law and the regulations promulgated by the Committee on Open Government (see Murtha v. Leonard, 210 AD 2d 411). Therefore, if, for example, an appointment is to inspect records on a particular day, it would appear that you should have the ability to review the records during business hours.
Lastly, you referred to the use of "file folders of non-hazardous variety" and the responsibility of a records access officer to avoid hazards (i.e., by not using materials that might cause paper cuts). In short, I am unaware of any responsibility imposed upon an agency's records access officer pertaining to the issue that you raised.
In an effort to remind Mr. Gelbard of the duty to send appeals and determinations to this office, a copy of this opinion will be sent to him. In addition, a copy will be forwarded to Ms. Deedy.
I hope that I have been of assistance.
Robert J. Freeman
cc: Bruce K. Gelbard