December 27, 2006

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.


We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to requests made to the New York State Department of Health. Specifically, you requested our opinion with respect to the following three issues:

“[W]hether I am entitled to a copy of any denials or approvals for information from the New York state Department of Health where the agency claims that records were sent and I have never received the records.

[W]hether I am entitled to information regarding an asset owned or leased by the new York state Department of Health and an expenditure of money by the agency. The specific asset is the mailroom equipment and the expenditure of money is postage used to mail items.

[W]hether I am entitled to an electronic copy of any correspondence from the New York State Department of Health, to me, and if I can ask that the information be certified as not having been altered after the fact.”

In response, we offer the following comments.

In our view, you may request copies of correspondence and records previously transmitted to you. In our opinion, you would be required to pay up to $.25 per page, and the agency would not be required to respond to such request multiple times, as per our previous correspondence to you regarding the State Education Department

You may request copies of records indicating ownership and/or a lease arrangement for mailroom equipment, as well as records indicating expenditures for postage. As you are likely aware, however, the Freedom of Information Law pertains to existing records. Section 89(3) states in part that an agency is not required to create a record in response to a request. And, again, as previously advised, your request must “reasonably describe” records maintained by the agency. If records are not maintained in a manner that permits their retrieval except by reviewing perhaps hundreds or perhaps thousands of records individually in an effort to locate those falling within the scope of the request, to that extent, in our opinion, the request would not meet the standard of reasonably describing records.

In response to your third question, the Freedom of Information Law requires that records be made available, irrespective of the "truth" or accuracy of their contents. If a record requested under the Freedom of Information Law indicates that two plus two equals five, it must be disclosed, unless there is an exception to rights of access that may properly be asserted [see §87(2)]. If a person seeks a certification under the Freedom of Information Law when a copy is made available, the certification merely indicates that the agency has made a true copy of its record; the certification made under that law has no connection or relevance to the accuracy of the content of the record.

Finally, in our opinion, requesting a copy of a denial that was previously issued would not revive an issue for appeal for which the statute of limitations has already passed. As previously advised, from our perspective, if a request has been made and denied, and if an applicant’s appeal has also been denied, we do not believe that an agency would be obliged to respond to a second request for the same records if circumstances have not changed.

In a recent decision involving a similar question, the court found that:

“The material sought by the petitioner in his 2003 FOIL request is identical to the material previously sought in his 2001 FOIL request. After exhausting administrative remedies with respect to the 2001 request the petitioner, as noted previously, commenced a proceeding for judgment pursuant to Article 78 of the CPLR challenging the denial of the request. Petitioner’s Article 78 proceeding, however, was dismissed as time-barred. Under these circumstances, the Court finds that this proceeding challenging the denial of an identical 2003 FOIL request represents a belated attempt to obtain judicial review of the denial of petitioner’s 2001 FOIL request. See VanSteenburg v. Thomas, 242 AD2d 802 lv den 91 NY2d 803. This proceeding, therefore, must be also dismissed as time-barred” (Martin v. Travis, Supreme Court, Franklin County, August 23, 2004).

In an earlier decision, it was held by the Appellate Division that a proceeding was barred by the statute of limitations in a situation in which a request involved a challenge to a second denial of access on the basis of the same grounds as the first, and in which there was no apparent change in circumstances [Corbin v. Ward, 153 AD2d 515, leave to appeal denied by Court of Appeals, 72 NY2d 707 (1990)].

On behalf of the Committee on Open Government, we hope this serves to clarify your understanding.



Camille S. Jobin-Davis
Assistant Director