September 29, 1997

Mr. Jeff Blocker
P.O. Box 104
Sonyea, NY 14556-0001

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. Blocker:

I have received your letter of September 2 addressed to William
Bookman. Please be advised that Mr. Bookman has retired. You have asked
for a review of your request made under the Freedom of Information Law to
the Department of Correctional Services and advise as to whether the request
might be "out of order."

First, since in your request, you indicated that you "do not want to
duplicate anything [you already] have", I note that it was held in Moore v.
Santucci [151 AD 2d 677 (1989)] that an agency need not make available
records that had been previously disclosed to the applicant or that person's
attorney, unless there is an allegation "in evidentiary form, that the copy was
no longer in existence." In my view, if you can "in evidentiary form"
demonstrate that neither you nor your attorney maintains records that had
previously been disclosed, the agency would be required to respond to a
request for the same records. Otherwise, insofar as the records sought have
been disclosed to you in the past, the Department of Correctional Services in
my view would not be required to provide copies of those same records.

Second, if, in responding to the request, the "materials sent [do] not
constitute ‘all' concerning this request", you asked that the Department
"indicate what is not included and why." In this regard, although an agency
must provide a denial of access in writing, there is no requirement that it
itemize or identify each and every record that has been withheld [see Nalo v.
Sullivan, 125 AD 2d 311 (1986)].

Third, I note that the Freedom of Information Law pertains to existing
records, and that §89(3) of that statute provides in part that an agency is not
required to create a record in response to a request. From my perspective, it
is possible that some of the records that you are seeking may no longer exist.
For example, you requested a "receipt of service", concerning materials sent
to you in March of 1993. Whether such a receipt was prepared or continues
to exist is unknown to me. If it does exist, the Freedom of Information Law
would not apply. Similarly, you asked for transcripts and dates of certain
conversations. If no such records exist, the agency would not be required to
prepare them on your behalf. You also asked for a citation identifying a
particular law under which certain action was taken. In my view, the Freedom
of Information Law involves requests for records; it does not require agency
staff to perform legal research and answer questions of a legal nature.

Next, you asked that fees for copying be waived. Here I point out that
there is nothing in the Freedom of Information Law that requires that an
agency waive fees, irrespective of the status of an applicant for records.
Further, it has been held that an agency may charge its established fees even
though the applicant is an indigent inmate [Whitehead v. Morgenthan, 552
NYS 2d 518 (1990)].

Lastly, 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.

Without knowledge of the contents of the records in which you are
interested, I could not conjecture as to the extent to which the records in
question might justifiably be withheld. Whether records are accessible or
deniable, an agency is required to respond to a request, and the Freedom of
Information Law provides direction concerning the time and manner in which
agencies must respond to requests. Specifically, §89(3) of the Freedom of
Information Law 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. In such a circumstance, 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)].

For your information, the person designated by the Department of
Correctional Services to determine appeals under the Freedom of Information
Law is Anthony Annucci, Counsel.

I hope that I have been of assistance.


Robert J. Freeman
Executive Director


cc: Roxanne Underwood