August 9, 1994



Ms. Diane Brennan
Mr. Michael VanWart
6243 Jockey Street
Middle Grove, NY 12850

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.

Dear Ms. Brennan and Mr. VanWart:

I have received your letter of July 25 and the materials attached to it. Having sought a variety of documentation under the Freedom of Information Law from the Town of Galway on July 18, you were informed that the request had been approved. However, you were also told that due to the schedules of the Town Clerk and the Deputy Town Clerk, the records may not be available until August 31.

Many of the records sought relate to an application for a special use permit that you, Mr. VanWort, submitted in March, 1993. Other records that you requested include agendas and minutes of meetings of the Planning Board and minutes of a public hearing. You also requested an explanation of a notation on a map and a list of any use restrictions associated with the notation.

It is your view that a "six week wait" is unreasonable and you requested advice in expediting the matter. In this regard, I offer the following comments.

First, §89(3) of the Freedom of Information Law provides direction concerning the time within which an agency 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)].

The Deputy Town Clerk properly acknowledged the receipt of the request within five business days and provided an estimated date indicating when the records would be made available. However, the question from my perspective is whether the possibility of taking up to six weeks to make the records available is reasonable, particularly since the request has been approved. It is emphasized that the Freedom of Information Law is intended to enhance the public's capacity to gain access to records; the time limitations described above are not intended, in my opinion, to enable agencies to delay disclosure unnecessarily. As stated in the legislative declaration appearing at the beginning of the Freedom of Information Law: "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible."

While I am not familiar with the Town's filing or record-keeping systems or procedures, I would conjecture that all or nearly all records relating to an application for a particular permit, especially those records associated with the SEQRA process, are kept in a single location in one file or perhaps several file folders kept together. In that circumstance, minimal search time would be needed to locate the records. Minutes of meetings are typically kept in chronological order in a minute book or similar filing instrument. If that is so, and if my assumption concerning records relating to the application and the SEQRA process are accurate, there would appear to be little or no reason for delaying disclosure, and it would be unreasonable, in my opinion, for the Town to do so until the end of August. In short, insofar as the records sought can be readily retrieved and copied, to comply with the intent of the Law, I believe that it is "incumbent" on the Town to make records available as soon as possible. If certain of the records sought cannot be readily retrieved, a delay may be warranted with respect to disclosure of those records. However, with regard to the others that can be quickly located, there would appear to be no valid basis for delaying their disclosure.

Additionally, some of the records sought must be made "readily available" pursuant to provisions of law other than the Freedom of Information Law. For instance, §8-0109(6) of the Environmental Conservation Law states that:

"To the extent as may be prescribed by the Commissioner pursuant to section 8-0113, the environmental impact statement prepared pursuant to subdivision two of this section together with the comments of public and federal agencies and members of the public, shall be filed with the commissioner and made available to the public prior to acting on the proposal which is the subject of the environmental impact statement.

The regulations prescribed by the Commissioner, which appear in 6 NYCRR 617.10, refer to "Draft EIS's" (environmental impact statements), and state in subdivision (e) that:

"The draft EIS, together with the notice of its completion, shall be filed and made available for copying as follows:

(1) one copy with the commissioner;

(2) one copy with the appropriate regional office of the department;

(3) one copy with the chief executive officer of the political subdivision in which the action will be principally located;

(4) if other agencies are involved in the approval of the action, with each such agency;

(5) one copy with persons requesting it. When sufficient copies of a statement are not available, the lead agency may charge a fee to persons requesting the statement to cover the costs in making the additional statement available..."

Subdivision (h), which pertains to "final" EIS's, states that "The final EIS, together with notice of its completion, shall be filed in the same manner as a draft EIS". Further, subdivision (i) provides that "Each agency which prepares notices, statements and findings required in this part shall retain copies thereof in a file which is readily available for public inspection"(emphasis added).

Lastly, I point out that the Freedom of Information Law pertains to existing records. Section 89(3) of the Law states in part that an agency need not create a record in response to a request. In this regard, if there is no written explanation of a notation appearing on a map, Town officials would not in my opinion be obliged to prepare a written explanation, thereby creating a new record, on your behalf. Similarly, if there is no "list of any use restrictions associated with this notation," the Town would not be required to prepare such a list.

In an effort to enhance compliance with and understanding of the Freedom of Information Law, copies of this opinion will be sent to Town officials.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Dorothy Hunt, Deputy Town Clerk
Town Clerk
Town Board Planning Board