October 17, 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 information presented in your correspondence.
I have received your letter in which you sought my opinion concerning whether an agency subject to the Freedom of Information Law, in your words, “MUST, on a regular basis, accept with the same force and effect, a faxed and/or email request as if such request was made either in-person and/or via the U.S. Mail (or other physical delivery service), and, notwithstanding the fact that an email does not contain any ‘written signature’ of the ‘applicant’ that an agency cannot, as a matter of law totally reject and/or otherwise ignore such a request made by fax and/or email”(emphasis yours).
In this regard, in an effort to offer proper and up to date guidance, research was conducted on your behalf, and I believe that my response must be based on a provision within the State Technology Law, which consists of a series of relatively recently enacted statutes. Specifically, §105(1) states in relevant part that:
“In accordance with rules and regulations promulgated by the electronic facilitator, government entities are authorized and empowered, but not required, to produce, receive, accept, acquire, record, file, transmit, forward, and store information by use of electronic means” (emphasis added).
Based on the foregoing, an agency may choose to accept a request under the Freedom of Information Law made by means of email, but as indicated above, it is “not required” to do so. Similarly, §105(1) specifies that an agency would not be required to “transmit” records via email sought under the Freedom of Information Law.
For your information, the regulations promulgated by the electronic facilitator appear in 9NYCRR Part 540.
Robert J. Freeman
cc: Glenn Valle, Counsel, Division of State Police