June 20, 1994



Mr. John E. Donovan
Ms. Virginia Donovan
250 Catherine Street
Williamsville, NY 14221

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 Mr. and Ms. Donovan:

I have received your letter of June 2 in which you sought an advisory opinion concerning the Freedom of Information Law.

According to your letter, on May 11, you submitted a "report of complaint" to the Town of Amherst Police Department. You requested a copy of the report on May 17. Having received no response to the request, you contacted and were informed by a police captain that you are not entitled to a copy of the report, "just a summary, unless [you] get a subpoena." You were told that the fee for the summary would be $3.50. In addition, when you submitted the report, a police officer said that he would not accept it unless one of you provided a social security number. You have questioned the "legality" of the foregoing.

In this regard, I offer the following comments.

First, the Freedom of Information Law deals with all agency records, including those maintained by law enforcement agencies. As a general matter, the Freedom of Information Law is based upon 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 (i) of the Law.

I am unfamiliar with the nature of your complaint. Nevertheless, since you prepared it, there would likely be no valid basis upon which the Department could rely to justify withholding a copy from you. The only situations that I can envision that would authorize a denial would involve a case in which the complaint related to the person charged where the charge was later dismissed, or where the complaint involved a juvenile or a person adjudicated a youthful offender. When charges are dismissed in favor of an accused, records pertaining to the charges are ordinarily sealed under §160.50 of the Criminal Procedure Law. Police records concerning juveniles are confidential under §784 of the Family Court Act, and records pertaining to youthful offenders may be sealed under Article 720 of the Criminal Procedure Law. In those instances, records, including a complaint, would be specifically exempted from disclosure and, therefore, deniable under §87(2)(a) of the Freedom of Information Law. However, if those situations are not relevant, and if no other basis for denial in the Freedom of Information Law could be asserted, the Department would be required to make a copy available to you.

Second, with respect to fees, unless a statute authorizes a different fee, §87(1)(b)(iii) of the Freedom of Information Law permits an agency to charge a maximum of twenty-five cents per photocopy. It is noted that a statute is an act of the State Legislature and that a local law or policy cannot increase an agency's fee above twenty-five cents per photocopy [see Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)].

Third, with respect to a requirement that a social security number be given, the federal Privacy Act is relevant. The only aspect of the federal Privacy Act (5 USC §552a) that pertains to state and local governments involves social security numbers, and §7 of the Act states that:

"(a)(1) [I]t shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security number.

(2) the provision of paragraph (a) of this subsection shall not apply with respect to --

(A) any disclosure which is required by Federal Statute, or

(B) the disclosure of a social security number to any Federal, State, or local agency maintaining a system of records in existence and operating before January 1, 1975, if such disclosure was required under statute or regulation adopted prior to such date to verify the identity of an individual

(b) Any Federal, State, or local government agency which requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it."

The quoted provision places limitations upon the collection and use of social security numbers by government, and unless "grandfathered in" under the Privacy Act, agencies cannot require the submission of social security numbers, except in conjunction with social security or other statutorily authorized purposes.

Lastly, the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3) of the Freedom of Information Law 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 when such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, or if an agency delays responding for an unreasonable time after it acknowledges that a request has been received, a request may, in my opinion, be considered to have been constructively denied. In such a circumstance, I believe that the denial may be appealed in accordance with §89(4)(a) of the Freedom of Information Law. That provision 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."

In addition, it has been held that when an appeal is made but a determination is not rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of Information Law, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].

I hope that I have been of some assistance.



Robert J. Freeman Executive Director


cc: Chief Ackley
Captain Owasco
Town Attorney