November 5, 1997

Mr. James P. Drohan
Donoghue, Thomas, Auslander & Drohan
Attorneys and Counselors at Law
Summit Corporate Park
2 Summit Court
Fishkill, NY 12524

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. Drohan:

I have received your letter of September 30 in which you indicated that
your firm represents the Valley Central School District.

Having received copies of correspondence between the District, Walter
Greening, myself and others, you asked whether:

"...the following guidelines can be distilled:

"1. School districts (such as Valley Central)
‘...have a responsibility to ensure that the
custody and integrity of their records is
maintained.' (See, Arts and Cultural Affairs
Law §57.25). Letter of December 26, 1995;

2. It is ‘reasonable' for Valley Central to
continue its ‘...procedure under which an
appointment is made in advance of long as the District offers a time
or times to review records promptly and in a
manner consistent with the intention of the
Freedom of Information Law.' Id.;

3. Once a ‘...mutually agreeable date and time
can be set for the inspection of records, the
taxpayer would have the right to inspect them
the remainder of that day's business hours.' Id.;

4. In light of ‘1-3' above, it would be
reasonable for the District, in determining a
mutually agreeable time for the appointment,
to predicate that determination upon the
availability of a Board employee so that the
Board does not abdicate its responsibility as
custodian of the records."

In this regard, I offer the following comments.

First, with respect to item 3, merely for purposes of clarity, I note that
an applicant for records, based upon the decision rendered in Murtha v.
Leonard [620 NYS 2d 101 (1994), 210 AD 2d 411] and the regulations
promulgated by the Committee on Open Government [§1401.4(a)], may
inspect records on a mutually agreeable date during the entirety of an agency's
regular business hours.

Second, with respect to item 4, in view of the history between the
District and Mr. Greening in relation to his requests, I would not agree that the
District could condition or predicate a determination to enable an applicant to
review records solely upon the availability of a District employee who can be
present to guarantee the District's custody of records is maintained. As stated
in the opinion rendered on July 24 of this year: "there is nothing in the
Freedom of Information Law that requires that an agency employee be present
while a member of the public inspects records. Similarly, I know of no
provision that requires the presence of a public employee as a condition
precedent to the review of records." I am not suggesting that the Board cannot
attempt to schedule a time for inspection in accordance with its ability to
assign an employee to ensure continued custody of records; I am suggesting,
however, that the District, in my view, could not limit the public's ability to
inspect records based upon its inability to assign staff to perform the function
in question on an ongoing or recurring basis. In United Federation of Teachers
v. New York City Health and Hospitals Corp. [428 NYS 823 (1980)], it was
determined that a shortage of staff did not constitute a valid defense for
denying a request, for acceptance of such a defense would "thwart the very
purpose of the Freedom of Information Law and make possible the
circumvention of the public policy embodied in the act" (id., 824). It is also
noted that the Court of Appeals has held that compliance with the Freedom of
Information Law is an obligation of government, and "not a gift of, or waste
of, public funds" [Doolan v. BOCES, 48 NY 2d 341, 347 (1979)].

To be sure, the District clearly has an interest in maintaining the
integrity of its records, and I believe that it is within the District's authority to
station an employee with an applicant who is inspecting records. However, if
the District simply does not have the staff to carry out that function, the
absence of staff, in my opinion, would not justify a denial of access or an
unreasonable delay in disclosure.

I hope that I have been of assistance.


Robert J.


cc: Walter Greening