From: Freeman, Robert (DOS) on behalf of Freeman, Robert J (DOS)
Sent: Wednesday, July 09, 2014 12:13 PM
Subject: Delay in disclosure



I have received your letter in which you described difficulties obtaining records from the Town of Tyre in
a timely manner. You referred specifically to a resolution approved by the Town Board on June 12, but
you added that the Town has “made [you] wait the 5 days and then 20 business days, for all of [your]
requests made in the past for public records, comments submitted and other very public papers.” In
this regard, I offer the following brief comments.

First, the Freedom of Information Law (FOIL) pertains to all government agency records and defines the
term “record” in expansively in §86(4) to include “any information kept, held, filed, produced or
reproduced by, with or for an agency…in any physical form whatsoever…” Based on the definition,
email, drafts and written materials kept for an agency, i.e., at town hall or by its attorneys, constitute
agency records that are subject to FOIL.

Second, because FOIL includes all agency records within its coverage, I note that §89(3)(a) authorizes an
agency to require that a request for a record be made in writing. Many agencies, however, honor verbal
requests when records are clearly public and readily found.

Third, the statement of intent appearing in §84 of FOIL states in part that agencies must make records
available “wherever and whenever feasible”. That being so, when records are clearly public and easily
retrievable, there often is no valid reason for delaying disclosure.

Fourth, based on §89(3)(a), an agency is required to respond to a request for records in some manner
within five business days of the receipt of a request. If more time is needed, the agency is required to
acknowledge the receipt of the request in writing and include “a statement of the approximate date,
which shall be reasonable under the circumstances of the request, when such request will be granted or
denied…” The same provision also states that:

“if circumstances prevent disclosure…within twenty business days from the date of
acknowledgement of the receipt of the request, the agency shall state, in writing both the
reason for the inability to grant the request within twenty business days and a date certain
within reasonable period, depending on the circumstances, when the request will be granted in
whole or in part.”

Based on the foregoing, following the acknowledgement of the receipt of a request within five business
days, a routine delay in response of twenty business days in every instance is inconsistent with law. Any
delay “shall be reasonable under the circumstances of the request.”

Fifth, with respect to minutes and access to a resolution approved at a Board meeting, I direct your
attention to the Open Meetings Law (OML). Section 106 pertains to minutes of meetings, and
subdivision (1) specifies that minutes must consist, at a minimum, “of a record or summary of all
motions, proposals, resolutions and any other matter formally voted upon and the vote
thereon.” Further, subdivision (3) requires that minutes be available within two weeks. In short, there
is no valid reason for delaying disclosure of minutes beyond two weeks.

Next, a resolution approved by a board is clearly available under §87(2)(g)(iii) of FOIL, which requires the
disclosure of final agency determinations.

Lastly, a relatively new provision, §103(e) of the OML, pertains to records “scheduled to be the subject
of discussion by a public body during an open meeting” and states that those records that are accessible
under FOIL, “as well as any proposed resolution, law, rule regulation, policy or any amendment thereto
shall be made available…to the extent practicable…prior to or at the meeting during which
The records will be discussed” and “shall be posted on the website” of the agency when practicable to
do so.

In an effort to enhance understanding of and compliance with FOIL and the OML, copies of this response
will be sent to the Town Supervisor and the Town Clerk.

I hope that I have been of assistance.