December 27, 1994



Ms. Lyla Hoffman
NAACP's Education Committee
P.O. Box 338
East Hampton, NY 11937

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. Hoffman:

I have received your letter of November 14 in which you requested an advisory opinion.

According to your letter, for several years, the Eastern Long Island NAACP Education Committee received "racial/ethnic data" from five local school districts having at least ten percent of its students of African American descent. The information is now being sought by means of forms that you have asked school district officials to complete.

The issue involves the Greenport School District, for the Superintendent has said he lacks the staff time to fill out your forms, that he is not obligated to do so, and that you should request "particular records." When you indicated that you are unaware of which records to request, he replied that that was "your problem."

Although I believe that the Superintendent is correct in his assertion that there is no obligation to complete your forms, the District must nonetheless disclose the information sought insofar as it exists. In this regard, I offer the following comments.

First, it is emphasized that the title of the Freedom of Information Law may be somewhat misleading, for it is not a vehicle that requires agencies to provide information per se; rather, it requires agencies to disclose records to the extent provided by law. As such, while an agency official may choose to answer questions or to provide information responsive to a request, those steps would represent actions beyond the scope of the requirements of the Freedom of Information Law. Moreover, the Freedom of Information pertains to existing records. Section 89(3) of that statute states in part that an agency need not create a record in response to a request. In short, while District officials could provide the information sought by completing your forms, they would not be required to do so by the Freedom of Information Law.

Second, the Freedom of Information Law does not require that you request "particular records." By way of background, when the Freedom of Information Law was initially enacted in 1974, it required that an applicant seek "identifiable" records. That standard often resulted in the kind of problem that you encountered, that you are unaware of the particular records that you want and therefore cannot identify them. Nonetheless, when the Freedom of Information Law was revised, the standard for requesting records was altered. Since 1978, §89(3) has stated that an applicant must merely "reasonably describe" the records sought. I point out that 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)].

Additionally, the regulations promulgated by the Committee on Open Government, which have the force and effect of law, state that an agency's designated records access officer has the duty of assuring that agency personnel "assist the requester in identifying requested records, if necessary" [21 NYCRR 1401.2(b)(2)]. Consequently, it is suggested that you confer with the records access officer in an effort to enable you to seek the records of your interest.

Lastly, 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. From my perspective, insofar as the information sought exists, it would be available, so long as the data are not identifiable to specific students.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Charles Kozora, Superintendent of Schools
Babette Cornine, Records Access Officer
  and District Clerk