June 1, 2018
FOIL AO 19667
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, except as otherwise indicated.
I have received your letter and the materials relating to it. You have sought an advisory opinion focusing on a request made pursuant to the Freedom of Information Law (FOIL) on behalf of your client, Tammy LaBarbera, for records of the New York City Fire Department.
The request was received on May 25, and its receipt was acknowledged on the same day. It was indicated that “The FDNY is unable to respond your request within 20 business days because of the volume of separate and distinct FOIL requests received by our office.” The records access officer, Ms. Sheryl Montour, added that “your request is number 3877 of 2018” and that the Department is “therefore extending the response time frame and will comply with your request on or before October 11, 2018.”
In seeking an opinion, you questioned whether “the fact that [the] request is numbered 3877 [is], in of itself relevant?” You expressed the concern parenthetically “that if there is in fact a significant backlog in the Fire Department’s response to outstanding FOIL requests, it may be due to circumstances created by the Fire Department.” You added that “presumably, some or perhaps many of the requests received by the Fire Department in 2018 are relatively ‘simple’ in that they do not involve legal analysis and may be assigned to clerical personnel for response.”
To learn more of the matter, I contacted and spoke with Ms. Montour. The figure “3877” indicates the number of FOIL requests received by the Department this year. I asked whether the requests that may be “simple” are answered quickly or more promptly than those considered to be more complex and, therefore, time consuming to prepare a response. She informed me that the great majority of the requests may be characterized as simple, but that the number of requests, simple or otherwise, has increased markedly during recent years. In short, the sheer volume of requests has made it impossible to respond effectively within a brief time, irrespective of the simplicity or complexity of a request. Because most requests are routine or simple, the Department responds in the order in which the requests are received.
Ms. Montour indicated that she has an assistant who assists. Nevertheless, again, the volume of requests continues to grow, as does the Department’s backlog, and further, a request always warrants review to determine rights of access. Frequently, although a report may be characterized as “routine”, it may include personal information which, if disclosed, would constitute an unwarranted invasion of privacy. That possibility necessitates review of records sought.
Optimally, to give greater effect to FOIL and to expedite the process, the Department should devote more staff to do so. Until that occurs, however, it appears that the date indicated by Ms. Montour for response would likely be considered by a court to be reasonable. As you are aware, §89(3)(a) of FOIL states that if an agency needs more than twenty business days beyond the date of the acknowledgement of the receipt of a request to grant a request in whole or in part, it must provide a “date certain” to do so, and the date must be reasonable based on attendant facts and circumstances.
Based on my conversation with Ms. Montour, it was suggested the records sought might be made available by seeking them directly by Ms. LaBarbera from her supervisor, or if she is involved in litigation, they might be disclosed via discovery or subpoena.
In sum, for the reasons offered in the precedent commentary, it appears that the delay in disclosure referenced by Ms. Montour is likely consistent with law.
Robert J. Freeman
Cc: Sheryl Montour (SherylE.Montour@fdny.nyC.gov)