May 1, 2015

FOIL-AO-19271

The staff of the Committee on Open Government is authorized to issue advisory opinions.  The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear Ms.:

            As you are aware, I have received your letter and a variety of materials relating to requests made pursuant to the Freedom of Information Law (FOIL) by or on behalf of your client for records of the Village of Muttontown.  Rather than addressing each and every request and the response thereto, the following comments will deal generally with the issues that have been raised.

            First, the fact that a person seeking records is or may be involved in litigation with the agency to which a FOIL request is made, according to the Court of Appeals, is irrelevant.  As stated by the Court in a case involving a request made under FOIL by a person involved in litigation against an agency:


"Access to records of a government agency under the Freedom of Information Law (FOIL) (Public Officers Law, Article 6) is not affected by the fact that there is pending or potential litigation
between the person making the request and the agency" [Farbman v. NYC Health and Hospitals
Corporation, 62 NY 2d 75, 78 (1984)]. Similarly, in an earlier decision, the Court of Appeals
determined that "the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and is neither enhanced...nor restricted...because he is also a litigant or potential litigant" [Matter of John P. v. Whalen, 54 NY 2d 89, 99 (1980)].

The Court in Farbman, supra, discussed the distinction between the use of FOIL as opposed to discovery in Article 31 of the Civil Practice Law and Rules (CPLR).  Specifically, it was found that:

"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on governmental decision-making, its ambit is not confined to records actually used in the decision-making process (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY 2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request [see Farbman, supra, at 80].

Based upon the foregoing, the pendency of litigation would not, in my opinion, affect either
the rights of the public or a litigant under FOIL.

Second, since reference to this issue was mentioned in the correspondence, I point out that FOIL pertains to existing records.  It does not require that agencies create new records in response to a request, explain the contents of records, or respond to questions.  Agencies may choose to do so, but in my view, they are not generally required to do so.   The matter relates to contentions that disclosure was delayed due to the need for the Village’s attorney to be present while records were being inspected.  It was stated that his presence was necessary because “you, as counsel for a litigation adversary, have persisted in questioning Village personnel while conducting your examinations of documents” and “to protect [his] client’s interests in response to your inappropriate contacts”.  While I could not have witnessed events during which records were examined, I believe that the controversy might have been avoided and disclosure expedited if Village officials or its attorney clearly indicated that records could be reviewed, but that those persons would not respond to questions concerning the records during their review.  

Third, it has been contended by the Village that certain requests could be rejected on the ground that they did not “reasonably describe” the records sought.  It was determined in those instances that the records were not filed or kept in a manner in which they could be found with reasonable effort.  If that is so, I believe that a response of that nature would be consistent with law.  However, there are indications that the records could be found with a modicum of effort, i.e., via reviews of agendas. 

It has been held by the Court of Appeals 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)]. The Court in Konigsberg found that the agency could not reject the request due to its breadth and 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).

While I am unfamiliar with the record keeping systems of the Village, again, to the extent that the records at issue may be located with reasonable effort, I believe that a request would have met the requirement of reasonably describing the records.  Muttontown is a village with a population of approximately 3,500 and there are approximately a thousand housing units.  It is not large, and often in similarly small communities, staff, due to familiarity with residents, events and developments, have the ability locate records with relative ease.  That may be so even in larger entities.  In Ruberti, Girvin & Ferlazzo v. Division of State Police [218 AD2d 494, 641 NYS2d 411 (1996)], one element of the decision pertained to a request for a certain group of personnel records, and the agency argued that it was not required to search its files those requested "because such records do not exist in a 'central   file' and, further, that FOIL does not require that it review every litigation or personnel file in search of such information" (id., 415). Nevertheless, citing Konigsberg, the court determined that:


"Although the record before this court contains conflicting proof regarding the nature of the files actually maintained by respondent in this regard, an agency seeking to avoid disclosure cannot, as respondent essentially has done here, evade the broad disclosure provisions FOIL by merely asserting that compliance could potentially require the review of hundreds of records" (id.).

Insofar as Village staff could have located the records of interest with a reasonable effort analogous to that described above, it would have been obliged to do so. As indicated in Konigsberg, only if it can be established that the Village maintains its records in a manner that renders its staff unable to locate and identify records would a request have failed to meet the standard of reasonably describing the records.

Fourth, a recurring issue involves the time permitted to inspect and/or copy records. In this regard, it has been advised by this office and held judicially that an agency cannot limit the ability of the public to inspect records to a period less than its regular business hours.

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 implementation of the Law (see 21 NYCRR Part 1401). In turn, §87 (1) requires agencies to adopt rules and regulations consistent with the Law and the Committee's regulations.

Section 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..."

Section 1401.4 of the regulations, entitled "Hours for public inspection", states that:

"(a) Each agency shall accept requests for public access to records and produce records during all hours they are regularly open for business."

Relevant to the matter is a decision rendered by the Appellate Division cited in the correspondence in which an issue involved the validity of a limitation regarding the time permitted to inspect records established by a village pursuant to regulation. The Court held that the village was required to enable the public to inspect records during its regular business hours, stating in part that:

"...to the extent that Regulation 6 has been interpreted as permitting the Village Clerk to limit the hours during which public documents can be inspected to a period of time less than the business hours of the Clerk's office, it is violative of the Freedom of Information Law..." [Murtha v. Leonard, 620 NYS 2e 101 (1994), 210 AD 2d
411].

Based on the foregoing, the Village, in my view, cannot limit your ability to inspect records to a period less than its regular business hours.

I do not believe, however, that a member of the public may designate the date or dates on which he or she seeks to review records. If, for instance, records will be in use by staff on a particular date or during a particular period of time, an agency would not, in my view, be required to alter its schedule or work plan. In that instance, the agency could offer a series of dates to the person seeking to inspect the records in order that he or she could choose a date suitable to both parties.

Significant in relation to the issue is the Legislative Declaration appearing in §84 of FOIL, which states in relevant part that “it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible” (emphasis mine).  Stated differently, when records are clearly public and easily retrieved or located, there is no justifiable reason for delaying disclosure.  From my perspective, the limitations on the time permitted to review and/or copy records imposed by the Village have in several instances been unreasonable and, therefore, inconsistent with the intent of FOIL.

Next, you wrote that the Village has prevented you and your client “from taking pictures with I-Pad…”  In my opinion, there is no basis for precluding you from copying records through the use of your I-pad, a camera or by taking notes. Section 87(2) of FOIL specifies that accessible records must be made available for inspection and copying. I note, too, that §§87(1)(b)(iii) and 89(3) indicate that the only fee that an agency can charge involves its reproduction of records at the request of an applicant. Further, the regulations promulgated by the Committee on Open Government, specify that no fee may be charged for the inspection of records.

In short, there is no prohibition concerning the use of a camera or an I-pad to photograph records.  Moreover, the use of devices of that nature, due to their size and independent power source, would not involve any use of agency resources or disruption of its activities different from inspection of records.

In good faith, I note that it has been held that a rule prohibiting the use of one's own photocopier has been found to be valid and reasonable when such use would cause disruption (see Murtha, supra). However, the use of a camera is different, for there would be no use of an agency's space or electricity, and there would be no distinction in terms of the agency's efforts in retrieving the records between the more traditional inspection of records and the use of a camera or I-pad. In short, I believe that a prohibition regarding the use of a camera or I-pad would be unreasonable and inconsistent with law.

Lastly, you wrote that the Village has engaged in redactions relative to some records and that others that fell within the scope of requests were seemingly withheld with no explanation.  In that latter situation, you indicated that “no list of non-produced documents or explanation of why or under what category of exemption the documents were removed from the file and not produced.”  Here I direct you to the regulations promulgated by this office.  Section 1401.2 (b)(3) states that an agency's records access officer is responsible for assuring that agency personnel make records available or "deny access to the records in whole or in part and explain in writing the reasons therefor." Based on the foregoing, the reasons for a denial of access must be stated in writing. This is not to suggest that any such reasons must be explained in an exhaustive manner. As you are aware, later in the process of seeking records, if an appeal is denied, §89(4)(a) provides that the reason must be "fully explain[ed] in writing."  Additionally, when any portion of a request is denied, the Committee’s regulations, require that the person denied access be informed of the right to appeal [§1401.7(b)]

I point out that there is nothing in FOIL or judicial decision construing that statute that would require that a denial at the agency level identify every record withheld in whole or in part or include a description of the reason for a denial of access in each individual instance.  That requirement may be imposed under the federal Freedom of Information Act, which may involve the preparation of a so-called "Vaughn index" [see Vaughn v. Rosen, 484 F.2D 820 (1973)].  Such an index provides an analysis of documents withheld and the basis for the denial of access to each.  I am aware of any decision involving the New York FOIL that requires the preparation of a similar index. 

I hope that I have been of assistance.

                                                                                    Sincerely,

                                                                                    Executive Director
Robert J. Freeman
RJF: paf

cc:  Board of Trustees, Village of Muttontown
Village of Muttontown Clerk/Treasurer