October 31, 2008
FROM: Camille S. Jobin-Davis, Assistant 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.
We are in receipt of your request for an advisory opinion concerning your ability to bring an additional person with you to school district offices to inspect records requested pursuant to the Freedom of Information Law. Specifically, you indicated that despite an appointment to inspect records, you were denied access when you appeared at the District office with another person. You were informed that the District "had to be told in advance if another person would be with [you]." You expressed the view that "there was plenty of room for the second person, and it caused no inconvenience" and that you "would never take a large group of people with me." In this regard, we offer the following comments.
As you suggest, we believe that an agency can not be expected to accommodate large numbers of people who seek to inspect records; however, we do not believe that an agency can refuse to permit the inspection of records solely on the ground that two people seek to do so without prior notice to the agency. In our opinion, an agency must offer records for inspection in a reasonable manner consistent with the intent of the Freedom of Information Law. We note that the legislative declaration appearing at the beginning of that statute provides that "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible." Accordingly, we believe that an agency must permit two people to inspect records when reasonable, and when so doing is not disruptive.
Although we are not aware of any judicial decisions directly on point, we can compare this request to one in which the applicant sought to use his own photocopier to make copies of agency records. In Murtha v. Leonard, 210 AD2d 411 (1994) it was held that a rule prohibiting the use of one's own photocopier was valid and reasonable when such use would cause disruption. The situation that you described is different, however, for there would be little additional use of the an agency's space or electricity. More importantly, there would be no distinction in terms of the agency's efforts in retrieving the records.
Further, while an agency is not required to do so, we believe that it may have a staff person observe an applicant or applicants for records while the records are being inspected. Agencies have a responsibility to ensure that the custody and integrity of their records is maintained (see Arts and Cultural Affairs Law §57.25). We do not believe that having an additional person with you to inspect records would necessarily impose an additional burden on an agency with respect to the agency=s observation of the inspection.
In short, we believe that a prohibition against an additional person to inspect records, alone, is unreasonable and inconsistent with law, and that the agency should not have denied access to the requested records based on a failure to provide advance notification.
On behalf of the Committee on Open Government, we hope that this is helpful to you.