From: Jobin-Davis, Camille (DOS)
Sent: Friday, August 17, 2012 9:53 AM
Subject: Freedom of Information Law - certification

As promised, the following is boilerplate language that we use in our advisory opinions:
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.

The statutory language quoted above is the second part of a sentence in section 89(3), the initial part of which pertains to the agency’s responsibility to provide copies upon payment of, or offer to pay, the necessary fee.  Accordingly, we have interpreted the certification requirement to be necessary if requested, after the agency has indicated that there are no records.

Camille S. Jobin-Davis, Esq.
Assistant Director
NYS Committee on Open Government
Department of State
99 Washington Ave, Suite 650
Albany NY 12231
Tel: 518-474-2518
Fax: 518-474-1927