September 13, 1994



Peter W. Sluys, Managing Editor
Community Media, Inc.
25 W. Central Avenue
Box 93
Pearl River, NY 10965

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 Mr. Sluys:

As you are aware, I have received your letter of August 23. Please accept my apologies for the delay in response.

You have sought my opinion as to whether §29(4) of the Town Law supersedes the Freedom of Information Law and requires that certain town records be made "immediately available."

The cited provision states that a town supervisor:

"Shall keep an accurate and complete account of the receipt and disbursement of all moneys which shall come into his hands by virtue of his office, in books of account in the form prescribed by the state department of audit and control for all expenditures under the highway law and in books of account provided by the town for all other expenditures. Such books of account shall be public records, open and available for inspection at all reasonable hours of the day, and, upon the expiration of his term, shall be filed in the office of the town clerk."

From my perspective, a crucial word in §29(4) is "reasonable", and I do not believe that "reasonable" can be equated with "immediate." If, for example, the records sought are in use by the supervisor or other town officials, it would be reasonable in my view to delay disclosure; if there is insufficient staff to supervise the inspection of records at a particular time, I do not believe that a town would be required to disclose the records immediately. Similarly, although the Freedom of Information Law permits an agency to take up to five business days to respond to a request, the five business day period is in my opinion intended to represent a maximum limitation; when records are readily retrievable and can be disclosed quickly, compliance with the Law, particularly in terms of its spirit and intent, would in my view require disclosure as soon as practicable and in fewer than five business days.

Lastly, while I do not believe that an agency may require that an applicant complete a request form prescribed by the agency, I believe that it may require that a request be made in writing in accordance with §89(3) of the Freedom of Information Law and the general grant of authority conferred by the Town Law (see e.g. §§63 and 64). With respect to requests generally, the Freedom of Information Law, §89(3), as well as the regulations promulgated by the Committee (21 NYCRR 1401.5), which have the force of law and govern the procedural aspects of the Law, require that an agency respond to a request that reasonably describes the record sought within five business days of the receipt of a request. Further, the regulations indicate that "an agency may require that a request be made in writing or may make records available upon oral request" [21 NYCRR 1401.5(a)]. As such, neither the Law nor the regulations refer to, require or authorize the use of standard forms. Accordingly, it has consistently been advised that any written request that reasonably describes the records sought should suffice.

It has also been advised that a failure to complete a form prescribed by an agency cannot serve to delay a response or deny a request for records. A delay due to a failure to use a prescribed form might result in an inconsistency with the time limitations imposed by the Freedom of Information Law. For example, assume that an individual requests a record in writing from an agency and that the agency responds by directing that a standard form must be submitted. By the time the individual submits the form, and the agency possesses and responds to the request, it is probable that more than five business days would have elapsed, particularly if a form is sent by mail and returned to the agency by mail. Therefore, to the extent that an agency's response granting, denying or acknowledging the receipt of a request is given more than five business days following the initial receipt of the written request, the agency, in my opinion, would have failed to comply with the provisions of the Freedom of Information Law.

While the Law does not preclude an agency from developing a standard form, as suggested earlier, I do not believe that a failure to use such a form can be used to delay a response to a written request for records reasonably described beyond the statutory period. However, a standard form may, in my opinion, be utilized so long as it does not prolong the time limitations for responding to requests. For instance, a standard form could be completed by a requester while his or her written request is timely processed by the agency. In addition, an individual who appears at a government office and makes an oral request for records could in my opinion be asked to complete the standard form as his or her written request.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Jack Cassidy, Supervisor