July 30, 1998


FROM:            Robert J. Freeman, Executive Director

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 :

            I have received your communication of July 16 concerning your requests made under the Freedom of Information Law to the State Education Department.

            Having discussed the matter with Joseph Porter, I was informed that your requests have been far-ranging and that the records sought are kept in various locations.  Mr. Porter indicated that the Department is making every effort to comply with law and that he anticipates responding to you by the beginning of next week for the purpose of describing the records that will be disclosed and those that will be withheld in whole or in part.

            For future reference, 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 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..."

            While an agency must grant access to records, deny access or acknowledge the receipt of a request within five business days, when such acknowledgement is given, there is no precise time period within which an agency must grant or deny access to records.  The time needed to do so may be dependent upon the volume of a request, the possibility that other requests have been made, the necessity to conduct legal research, the search and retrieval techniques used to locate the records and the like.  In short, when an agency acknowledges the receipt of a request because more than five business days may be needed to grant or deny a request, so long as it provides an approximate date indicating when the request will be granted or denied, and that date is reasonable in view of the attendant circumstances, I believe that the agency would be acting in compliance with law. 

            You asked whether "electronic requests (via e-mail) allowed if the requestor is known by the office the information is being requested from."  In my view, whether the applicant is known by the agency in receipt of a request is irrelevant.  As indicated earlier, §89(3) of the Freedom of Information Law enables an agency to require that a request be made in writing, and the applicant in such request is required to "reasonably describe" the records sought.  While the law does not refer specifically to requests made by e-mail, I would conjecture that a court would determine that an e-mail request that reasonably describes the records would be consistent with law.

            I hope that I have been of assistance.



                                                                                                Robert J. Freeman
Executive Director


cc: Joseph Porter