June 18, 1995
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 of June 14 in which you requested an advisory opinion concerning the Freedom of Information Law.
Attached to your letter is a memorandum addressed to you by David Ashe, the public information officer for the City of Utica. At the end of that document, Mr. Ashe wrote that "[t]he city is responsive to news media inquiries in a measured, timely and, all things considered, impersonal manner. Be advised, with news inquiries, only fax them." You have interpreted that statement to mean "that all communications with him must be faxed." You have sought an opinion "informing the city of the proper procedures required under the state's Freedom of Information Law."
In this regard, I offer the following comments.
First, by way of background, §89(1)(b)(iii) of the Freedom of Information Law requires the Committee on Open Government to promulgate regulations concerning the procedural aspects of the Law (see 21 NYCRR Part 1401). In turn, §87(1)(a) of the Law states that:
"the governing body of each public corporation shall promulgate uniform rules and regulations for all agencies in such public corporation pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article, pertaining to the administration of this article."
In this instance, the governing body of a public corporation, the City of Utica, is the City Council, and I believe that the Council is required to promulgate appropriate rules and regulations consistent with those adopted by the Committee on Open Government and with the Freedom of Information Law.
The initial responsibility to deal with requests is borne by an agency's records access officer, and the Committee's regulations provide direction concerning the designation and duties of a records access officer. Specifically, §1401.2 of the regulations provides in relevant part that:
"(a) The governing body of a public corporation and the head of an executive agency or governing body of other agencies shall be responsible for insuring compliance with the regulations herein, and shall designate one or more persons as records access officer by name or by specific job title and business address, who shall have the duty of coordinating agency response to public requests for access to records. The designation of one or more records access officers shall not be construed to prohibit officials who have in the past been authorized to make records or information available to the public from continuing to do so."
As such, the City Council has the ability to designate "one or more persons as records access officer". Further, §1401.2(b) of the regulations describes the duties of a records access officer and states in part that:
"The records access Officer is responsible for assuring that agency personnel:
(1) Maintain an up-to-date subject matter list.
(2) Assist the requester in identifying requested records, if necessary.
(3) Upon locating the records, take one of the following actions:
(i) make records promptly available for inspection; or
(ii) deny access to the records in whole or in part and explain in writing the reasons therefor.
(4) Upon request for copies of records:
(i) make a copy available upon payment or offer to pay established fees, if any; or
(ii) permit the requester to copy those records.
(5) Upon request, certify that a record is a true copy.
(6) Upon failure to locate the records, certify that:
(i) the agency is not the custodian for such records; or
(ii) the records of which the agency is a custodian cannot be found after diligent search."
Second, if indeed Mr. Ashe's statement is intended to mean that he will accept requests for records under the Freedom of Information Law only if they are faxed to him, I believe that the City would be acting in a manner inconsistent with the Law and the regulations promulgated by the Committee. Section 89(3) of the Law makes reference to an agency's obligation to respond to "a written request for a record reasonably described." Similarly, §1401.5 of the regulations states in relevant part that:
"(a) An agency may require that a request be made in writing or may make records available upon oral request. (b) An agency shall respond to any request reasonably describing the records sought within five business days of receipt of a request."
In short, I believe that the City must accept any written request that reasonably describes the records, and that it cannot require that requests be made only by fax communication.
As you requested, copies of this opinion will be forwarded to City officials.
I hope that I have been of assistance.
Robert J. Freeman
cc: City Council
Hon. Edward Hanna