May 6, 2013

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.

Dear :

Thank you for your March 18 inquiry.  In response, I have set forth information below and enclosed advisory opinions related directly to the issues you raise.

First, with respect to the statutory time limits for responding to requests (see enclosure, Explanation of Time Limits) in an agency such as yours that does not hold regular business hours, we believe that every law must be implemented in a manner that gives reasonable effect to its intent, and we point out that in its statement of legislative intent, §84 of the Freedom of Information Law states that “it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible.”  Accordingly, in response to a question about when the agency is “in receipt” of a FOIL request, or when the clock for responding to such a request begins to tick, we recommend that the agency open its paper and electronic mail on a regular basis, in a reasonable manner, so as to comply with the intent of the law.  Designating one person to monitor the agency’s email account and mail on a daily basis, in our opinion, or as frequently as there is someone at the fire house, would be part of a reasonable effort.

Second, when an agency does not maintain daily regular business hours, the agency is required to establish written procedures for persons to arrange appointments to inspect and copy records.  See FOIL-AO-9309, attached.

Third, with respect to the requirement that the appeals officer be a different person than the records access officer, we note that the statute authorizes the head of any agency, the chief executive or the governing body to appoint a person to respond to appeals on the agency’s behalf.  In the alternative, if the governing body chooses to maintain its authority to respond to appeals, we would suggest that the governing body appoint one person to act as the consultant for the records access officer, so as not to create conflict.  Regulations adopted by the Committee on Open Government, which have the full force and effect of law require that the records access officer and the appeals officer be different people.  See FOIL-AO-18691, attached.

With respect to an agency’s obligations in response to requests that identify large volumes of records, we refer again to the enclosed Explanation of Time Limits.  What is reasonable, as outlined, is based on the volume of records requested, the time involved in locating the material, and the complexity of the issues involved in determining what is required to be made public.  Accordingly, if it is known that any agency requires more than five business days to respond to a request in a reasonable manner, the applicant should be so informed.

Finally, with respect to questions concerning records that may document wrongdoing that has not yet been investigated or adjudicated, we point out that the Freedom of Information Law is based on a presumption of access.  Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (l) of the Law.  Accordingly, if the records exist, and there is no basis for the agency to deny access, they would be required to be disclosed, as above, in a reasonable manner.

We hope that this is helpful.


Camille S. Jobin-Davis
Assistant Director