June 3, 2003
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.
I have received your letter of May 1 in which you raised a series of questions relating to the obligation of the Rensselaer County Department of Health to "have in place" and make accessible rules and regulations concerning the Freedom of Information Law.
In this regard, while the Department of Health is subject to rules and regulations adopted pursuant to the Freedom of Information Law, there is no requirement that regulations be promulgated that are solely applicable or unique to the Department.
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 aspects of the Law (see 21 NYCRR Part 1401). In turn, §87(1)(a) of the Law states that:
"the governing body of each public corporation shall promulgate uniform rules and regulations for all agencies in such public corporation pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article, pertaining to the administration of this article."
In this instance, I believe that the public corporation is the County, and that the governing body would be the County Legislature. If that is so, the County Legislature was required to promulgate appropriate uniform rules and regulations applicable to entities within County government consistent with those adopted by the Committee on Open Government and with the Freedom of Information Law within sixty days of January 1, 1978, the effective date of the law.
The initial responsibility to deal with requests is borne by an agency's records access officer, and the Committee's regulations provide direction concerning the designation and duties of a records access officer. Specifically, §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."
When a request is denied, it 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."
Further, the regulations promulgated by the Committee state that:
"(a) The governing body of a public corporation or the head, chief executive or governing body of other agencies shall hear appeals or shall designate a person or body to hear appeals regarding denial of access to records under the Freedom of Information Law.
(b) Denial of access shall be in writing stating the reason therefor and advising the person denied access of his or her right to appeal to the person or body established to hear appeals, and that person or body shall be identified by name, title, business address and business telephone number. The records access officer shall not be the appeals officer" (§1401.7).
I hope that the foregoing serves to clarify your understanding of applicable law and that I have been of assistance.
Robert J. Freeman
cc: Thomas N. Cioffe