August 8, 1994



Mr. Mark L. Behan, President
Behan Communications, Inc.
176 Glen Street - PO Box 922
Glens Falls, NY 12801

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, unless otherwise indicated.

Dear Mr. Behan:

I have received your letter of July 25, as well as the materials attached to it.

In your capacity as the representative of the Blue Line Council, Inc. ("the Council"), a group of former state officials and property owners in the Adirondack Park, you sought my opinion concerning the Council's efforts in obtaining records from the Adirondack Park Agency ("the Agency").

One of the requests made by the Council concerns records "related to 'master plan' conditions." The records access officer for the Agency, Eleanor H. Duffus, indicated in a letter of May 2 that the Agency "does not maintain a list of applicants with whom 'master plans' have been discussed or permits in which 'master plans' have been required." Having contacted the APA, I was informed that the Agency responded to the request and disclosed records on August 1 relating to 15 projects in which master plans were involved. I was also informed that the Agency could not verify that its response included all records falling within the scope of the request, for the records in many instances could be located only on the basis of the recollections of staff members.

In conjunction with the foregoing, I believe that an initial issue is whether the request concerning master plan conditions "reasonably described" the records sought as required by §89(3) of the Freedom of Information Law. It has been held that a request reasonably describes the records when the agency can locate and identify the records based on the terms of a request, and that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

Although it was found in the decision cited above that the agency could not reject the request due to its breadth, it was also stated that:

"respondents have failed to supply any proof whatsoever as to the nature - or even the existence - of their indexing system: whether the Department's files were indexed in a manner that would enable the identification and location of documents in their possession (cf. National Cable Tel. Assn. v Federal Communications Commn., 479 F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability under Federal Freedom of Information Act, 5 USC section 552 (a) (3), may be presented where agency's indexing system was such that 'the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency'])" (id. at 250).

In my view, whether a request reasonably describes the records sought, as suggested by the Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing or record-keeping system. In Konigsberg, it appears that the agency was able to locate the records on the basis of an inmate's name and identification number.

In this instance, based upon information provided to me and to the President of the Council, the Agency's record-keeping system does not enable the staff to retrieve the kinds of records that were requested, except via the recollection of staff or by means of a record by record review of Agency records. If indeed that is so, it appears that the request, perhaps absent any fault on the part of either the Council or the Agency, would not have reasonably described the records, and that the Agency's actions represented an effort above and beyond the requirements of the Freedom of Information Law.

A second issue involves delays in responding to requests. When a request reasonably describes the records sought, the Freedom of Information Law provides direction concerning the time and manner in which an agency must respond to requests and appeals §89(3) of that statute 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. Similarly, if an agency acknowledges the receipt of a request but fails to provide a "statement of the approximate date when such request will be granted or denied," the agency in my view would have failed to comply with §89(3). In an analogous situation in which the court found that a request was constructively denied, it was stated that:

"The acknowledgement letters in this proceeding neither granted nor denied petitioner's request nor approximated a determination date. Rather, the letters were open ended as to time as they stated, 'that a period of time would be required to ascertain whether such documents do exist, and if they did, whether they qualify for inspection'.

"This court finds that respondent's actions and/or inactions placed petitioner in a 'Catch 22' position. The petitioner, relying on the respondent's representation, anticipated a determination to her request. While the petitioner may have been well advised to seek an appeal...this court finds that this petitioner should not be penalized for respondent's failure to comply with Public Officers Law §89(3), especially when petitioner was advised by respondent that a decision concerning her application would be forthcoming...

"It should also be noted that petitioner did not sit idle during this period but rather made numerous efforts to obtain a decision from respondent including the submission of a follow up letter to the Records Access Officer and submission of various requests for said records with the different offices of the Department of Transportation.

"Therefore, this court finds that respondent is estopped from asserting that this proceeding is improper due to petitioner's failure to appeal the denial of access to records within 30 days to the agency head, as provided in Public Officers Law §89(4)(a)" (Bernstein v. City of New York, Supreme Court, NYLJ, November 7, 1990).

When a request is constructively denied or denied in writing, 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)].

Lastly, reference is made in the correspondence to "internal communications." On one hand, the Agency appears to have contended that the Freedom of Information Law authorizes a denial of access to "draft documents or internal communications." On the other, the President of the Council suggests that "intra-Agency materials only are exempt if they do not affect the public." In my opinion, neither contention is entirely accurate.

The Freedom of Information Law pertains to all agency records, and §86(4) of the Law defines the term "record" to mean:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

Based on the foregoing, when information exists in some physical form, whether it is a draft or final, I believe that it would constitute a "record" subject to rights conferred by the Freedom of Information Law.

Drafts or internal communications would be available or deniable in whole or in part; due to the structure of §87(2)(g), the contents of those records serve as the factors in determining the extent to which they must be disclosed or may be withheld. That provision authorizes an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director

cc: Eleanor H. Duffus