August 12, 1997




Ms. Corrine M. Wolfanger
8503 Kysorville/Byersville Road
Dansville, NY 14437

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 Ms. Wolfanger:

I have received your letter of July 11, as well as a variety
of related materials. You have sought a "review" of the
correspondence, all of which pertains to your efforts in obtaining
records from the Town of West Sparta.

Based on consideration of the materials, I offer the following

First, the possibility that the records sought might be
pertinent to or used in litigation is, in my view, largely
irrelevant. As stated by the Court of Appeals, the State's highest
court, in a case involving a request made under the Freedom of
Information Law 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 the Freedom of Information Law as
opposed to the use of discovery in Article 31 of the Civil Practice
Law and Rules. 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 NY2d 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.

"CPLR article 31 proceeds under a different
premise, and serves quite different concerns.
While speaking also of 'full disclosure'
article 31 is plainly more restrictive than
FOIL. Access to records under CPLR depends on
status and need. With goals of promoting both
the ascertainment of truth at trial and the
prompt disposition of actions (Allen v.
Crowell-Collier Pub. Co., 21 NY 2d 403, 407),
discovery is at the outset limited to that
which is 'material and necessary in the
prosecution or defense of an action'" [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 the Freedom of Information Law.

Second, one of the contentions offered by an attorney
representing the Town is that you did not request "specific
documents." From my perspective, there is no requirement that you
seek specific documents. By way of background, when the Freedom of
Information Law was initially enacted in 1974, it required that an
applicant request "identifiable" records. Therefore, if an
applicant could not name the record sought or "identify" it with
particularity, that person could not meet the standard of
requesting identifiable records. In an effort to enhance its
purposes, when the Freedom of Information Law was revised, the
standard for requesting records was altered. Since 1978, §89(3)
has stated that an applicant must merely "reasonably describe" the
records sought. I point out that 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).

In my view, whether a request reasonably describes the records
sought, as suggested by the Court of Appeals, may be dependent upon
the terms of a request, as well as the nature of an agency's filing
or record-keeping system. In Konigsberg, it appears that the
agency was able to locate the records on the basis of an inmate's
name and identification number.

While I am unfamiliar with the Town's recordkeeping systems,
it seems unlikely that staff could not locate records pertaining to
the matter at issue in conjunction with your request. Assuming
that the records sought can be located with reasonable effort, I
believe that your request would have met the requirement that you
"reasonably describe" the records.

Moreover, the regulations promulgated by the Committee on Open
Government, which have the force and effect of law, state that an
agency's designated records access officer has the duty of assuring
that agency personnel "assist the requester in identifying
requested records, if necessary" [21 NYCRR 1401.2(b)(2)].

Third, I note that the Freedom of Information Law provides
direction concerning the time and manner in which agencies must
respond to requests. Specifically, §89(3) of that statute states
in part that:

"Each entity subject to the provisions of this
article, within five business days of the
receipt of a written request for a record
reasonably described, shall make such record
available to the person requesting it, deny
such request in writing or furnish a written
acknowledgement of the receipt of such request
and a statement of the approximate date when
such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the
receipt of a request is given within five business days, or if an
agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my
opinion, be considered to have been constructively denied.
Similarly, if an agency acknowledges the receipt of a request but
fails to provide a "statement of the approximate date when such
request will be granted or denied," the agency in my view would
have failed to comply with §89(3). In a situation in which the
court found that a request was constructively denied, it was stated

"The acknowledgement letters in this
proceeding neither granted nor denied
petitioner's request nor approximated a
determination date. Rather, the letters were
open ended as to time as they stated, 'that a
period of time would be required to ascertain
whether such documents do exist, and if they
did, whether they qualify for inspection'.

"This court finds that respondent's actions
and/or inactions placed petitioner in a 'Catch
22' position. The petitioner, relying on the
respondent's representation, anticipated a
determination to her request. While the
petitioner may have been well advised to seek
an appeal...this court finds that this
petitioner should not be penalized for
respondent's failure to comply with Public
Officers Law §89(3), especially when
petitioner was advised by respondent that a
decision concerning her application would be

"It should also be noted that petitioner did
not sit idle during this period but rather
made numerous efforts to obtain a decision
from respondent including the submission of a
follow up letter to the Records Access Officer
and submission of various requests for said
records with the different offices of the
Department of Transportation.

"Therefore, this court finds that respondent
is estopped from asserting that this
proceeding is improper due to petitioner's
failure to appeal the denial of access to
records within 30 days to the agency head, as
provided in Public Officers Law §89(4)(a)"
(Bernstein v. City of New York, Supreme Court,
NYLJ, November 7, 1990).

When a request is constructively denied or denied in writing,
I believe that the denial may be appealed in accordance with
§89(4)(a) of the Freedom of Information Law. 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, 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."

In addition, it has been held that when an appeal is made but
a determination is not rendered within ten business days of the
receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her
administrative remedies and may initiate a challenge to a
constructive denial of access under Article 78 of the Civil
Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57
NY 2d 774 (1982)].

Fourth, 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)].

Lastly, assuming that the records in question exist and can be
located, I believe that they would be available in great measure,
if not in their entirety. As a general matter, the Freedom of
Information Law is based upon a presumption of access. Stated
differently, all records of an agency are available, except to the
extent that records or portions thereof fall within one or more
grounds for denial appearing in §87(2)(a) through (i) of the Law.

As I understand the situation, the records at issue that had
not been disclosed as of the date of your letter to this office
involve reports prepared by one or more code enforcement officers
regarding alleged leaks that were sent to the Department of
Environmental Conservation. You added that the minutes of a
certain meeting of the Town Board make specific reference to such
a report or reports.

Relevant to the matter is §87(2)(g) of the Freedom of
Information Law. That provision, although it serves as a potential
ground for denial, often, due to its structure, requires
disclosure, for it permits an agency to withhold records that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or

ii. instructions to staff that affect the

iii. final agency policy or determinations;

iv. external audits, including but not
limited to audits performed by the comptroller
and the federal government..."

It is noted that the language quoted above contains what in effect
is a double negative. While inter-agency or intra-agency materials
may be withheld, portions of such materials consisting of
statistical or factual information, instructions to staff that
affect the public, final agency policy or determinations or
external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently, those
portions of inter-agency or intra-agency materials that are
reflective of opinion, advice, recommendation and the like could in
my view be withheld.

In short, insofar as the records in question consist of
statistical or factual information, I believe that they must be

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Town Board
Michael Damia