October 22, 2015
FROM: Robert J. Freeman, Executive 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 facts presented in your correspondence, expect as otherwise.
I have received your brief email request for an advisory opinion concerning the delays that you have encountered in relation to requests made pursuant to the Freedom of Information Law (FOIL) for records of the New York City Department of Education. Two requests were made on June 11, and two others were made on July 1.
In accordance with §89(3)(a) of FOIL, the receipt of those requests was acknowledged, respectively, in letters dated June 18 and July 9. You were informed in those letters that the Department’s Central Records Access Officer (CRAO) would conduct a “diligent search” for the records sought “with a reasonable date by which your request would be determined.” It appears that no specification of a “reasonable date” was given. Thereafter, “the CRAO extended the reasonable approximate date by which your request would be determined, most recently to October 13, 2015, and November 2, 2015.” The reasons offered for the delays are based on the “volume and complexity of requests received and processed.”
You appealed on September 18 and contended that the Department’s responses resulted in constructive denials of your requests. General Counsel to the Department answered, indicating that your appeal was “premature because the CRAO’s efforts to respond to request within the applicable time limitations were ongoing” and that the requests involve records “that contain sensitive information, and must be carefully reviewed for potential redactions.” Based on those reasons, she wrote that your request was not constructively denied.”
I note that the language of the Chancellor’s Regulation, section D-110 (V.) is consistent with the language of FOIL and the regulations promulgated by the Committee on Open Government [21 NYCRR section 1401.5(d)]. That being so, an issue, in my view, is whether the delays are reasonable based on attendant facts and circumstances.
In consideration of the nature of the records requested, I do not believe that most can justifiably be characterized as “sensitive.” That becomes clear based on a review of the records sought. The employee database and salary database could hardly be considered to be sensitive. Section 87(3)(b) of FOIL has for more than thirty-five years required that each agency “shall maintain….a record setting forth the name, public office address, title and salary of every officer or employee of the agency.” It is a record that must be “maintained”, and that being so, I believe that it should be readily retrievable to comply with law. Records indicating salary and stipends, i.e., gross wages, are clearly public, and they, too, should not be difficult to locate or retrieve, for they are used to pay their employees and are reported to City, state and federal tax agencies. I believe that the same would be so relative to the portion of the request involving employees who received bonuses. The student directory is either available based on the Department’s directory information policy established pursuant to the federal Family Educational Rights and Privacy Act (FERPA, 20 U.S.C. § 1232g; 34 CFR Part 99) if such policy exists, or if there is no such policy, directory information identifiable to students must be kept confidential. Data identifying employees on paid and unpaid leave involve attendance and payroll records that must exist and be used on an ongoing basis, and I point out that records reflective of leave time used or accrued were found by the Court of Appeals, the state’s highest court, to be available in a decision rendered in 1986 (Capital Newspapers v. Burns, 67 NY2d 562). Employee settlement agreements have been found on several occasions by the courts to be public [Anonymous v. Board of Education, 616 NYS 2d 867 (1994); Buffalo Evening News v. Board of Education, Supreme Court, Erie County, June 12, 1989; Paul Smith’s College v. Cuomo, 186 AD 2d 888 (1992); Western Suffolk BOCES v. Bay Shore Union Free School District, 250 A.D.2d 772 (1998)].
Those agreements represent final agency determinations the disclosure of which would not constitute unwarranted invasions of the privacy of public employees. Cell phone numbers of employees with district issued cell phones or receive cell phone stipends would, in my view, clearly be public. There is nothing “personal” about the phone number of a device issued to a public employee for use in relation to the performance of his/her official duties.
The only item in my opinion that could be characterized as “sensitive” would involve the database of DOE investigations. I am unaware of the kinds of items contained in that database or whether the outcomes of investigations are categorized in some manner. If, for example, those outcomes can be segregated with reasonable effort in relation to findings of misconduct of public employees as opposed to different outcomes, it would appear that the task would not be onerous.
I, too, note that §89(a) of FOIL states that:
“When records maintained electronically include items of information that would be available under this article, as well as items of information that may be withheld, an agency in designing its information retrieval methods, whenever practicable and reasonable, shall do so in a manner that permits the segregation and retrieval of available items in order to provide maximum public access.”
Because your requests were made several months ago, and because you have not yet either obtained copies of the records or received a final determination regarding the matter, it is emphasized that FOIL provides direction concerning the time and manner in which agencies must respond to requests. An agency may not engage in continual or repeated delays. Specifically, §89(3)(a) states in part that:
"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied..."
In order to attempt to ensure that agencies respond to requests in a timely manner, new language was added to that provision on May 3 (Chapter 22, Laws of 2005) stating that:
"If circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the 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 a reasonable period, depending on the circumstances, when the request will be granted in whole or in part."
Based on the foregoing, an agency must grant access to records, deny access in writing, or acknowledge the receipt of a request within five business days of receipt of a request. When an acknowledgment is given, it must include an approximate date within twenty business days indicating when it can be anticipated that a request will be granted or denied. However, if it is known that circumstances prevent the agency from granting access within twenty business days, or if the agency cannot grant access by the approximate date given and needs more than twenty business days to grant access, it must provide a written explanation of its inability to do so and a “date certain”, a specific date by which it will grant access to the records sought in whole or in part. That date must be reasonable in consideration of the circumstances associated with the request.
The amendments clearly are intended to prohibit agencies from unnecessarily delaying disclosure. In my view, every law must be implemented in a manner that gives reasonable effect to its intent, and I point out that in its statement of legislative intent, §84 of FOIL states that "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible.” As the Court of Appeals has asserted:
"...the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom. By their very nature such objectives cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception. The phrase 'public accountability wherever and whenever feasible' therefore merely punctuates with explicitness what in any event is implicit" [Westchester News v. Kimball, 50 NY2d 575, 579 (1980)].
In a judicial decision concerning the reasonableness of a delay in disclosure that preceded the enactment of the 2005 amendments that cited and confirmed the advice rendered by this office concerning reasonable grounds for delaying disclosure, it was held that:
"The determination of whether a period is reasonable must be made on a case by case basis taking into account the volume of documents requested, the time involved in locating the material, and the complexity of the issues involved in determining whether the materials fall within one of the exceptions to disclosure. Such a standard is consistent with some of the language in the opinions, submitted by petitioners in this case, of the Committee on Open Government, the agency charged with issuing advisory opinions on FOIL"(Linz v. The Police Department of the City of New York, Supreme Court, New York County, NYLJ, December 17, 2001).
If neither a response to a request nor an acknowledgment of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time beyond the approximate date of twenty or fewer business days given in its acknowledgment, if it acknowledges that a request has been received, but has failed to grant access by the specific date given beyond twenty business days, or if the specific date given is unreasonable, a request may be considered to have been constructively denied [see §89(4)(a)]. In such a circumstance, the denial may be appealed in accordance with §89(4)(a), which states in relevant part that:
"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."
Based on the direction given in the provision quoted above, if an appeal is denied in whole or in part, an agency cannot merely reiterate the grounds for denial expressed in its initial response to a request. On the contrary, it must “fully explain in writing the reasons for further denial. A cursory or perfunctory response would be inconsistent with that requirement.
In an effort to resolve the matter, a copy of this opinion will be forwarded to officials at the Department of Education.
I hope that I have been of assistance.