January 4, 1995



Mr. Ben Zion Friedman
5 Kennedy Court
Monroe, NY 10950

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. Friedman:

I have received your transmission of November 27 and various related materials. You have sought an advisory opinion concerning the Freedom of Information Law.

One aspect of the materials involves litigation that you initiated against the Village of Kiryas Joel. You informed me by phone that the litigation was withdrawn and that no action involving the Freedom of Information Law is currently pending against the Village. As a matter of policy, the Committee on Open Government does not prepare opinions at the request of a person or entity involved in litigation brought under the Freedom of Information Law. Based upon your representation that no litigation is pending, this response will constitute an advisory opinion.

By way of background, beginning in August, you sought records from the Village identifying those who voted on July 25, 1994, in the election involving the creation of a new school district. The request was denied on August 23. There is no indication in the letter of denial prepared by the clerk that you had the right to appeal the denial. Although you initiated a suit, it was withdrawn due to your apparent failure to exhaust your administrative remedies. Consequently, a new request was made on October 19. In a response dated October 31, the Clerk wrote that:

"The Board of Trustees has reviewed your request to obtain copies of the voter registration cards for all persons who voted in the July 25, 1994, election conducted by the Village. The Village will make these records available to you to the extent such records are maintained by the Village and subject to redaction of any personal information which would violate the privacy provisions of FOIL...

"Please note that the Village does not maintain a registration card for all voters who are registered to vote in Village elections. The Village maintains registration cards only of those persons who have registered to vote directly with the Village. Other persons have registered with the Orange County Board of Elections and those registration cards are on file with the County Board of Elections."

Although you have contacted the Village on several occasions since the receipt of that response, you have not yet received any records. You informed me that your last written communication from the Village is dated December 8, at which time you were informed that you would receive the records, perhaps following redactions, within two to three weeks.

In this regard, I offer the following comments.

First, 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)].

It is also noted that the regulations promulgated by the Committee on Open Government (21 NYCRR Part 1401), which govern the procedural aspects of the Law, state that:

"(a) The governing body of a public corporation or the head, chief executive or governing body of other agencies shall hear appeals or shall designate a person or body to hear appeals regarding denial of access to records under the Freedom of Information Law.

(b) Denial of access shall be in writing stating the reason therefor and advising the person denied access of his or her right to appeal to the person or body established to hear appeals, and that person or body shall be identified by name, title, business address and business telephone number. The records access officer shall not be the appeals officer" (section 1401.7).

In conjunction with the foregoing, the state's highest court has held that a failure to inform a person denied access to records of the right to appeal enables that person to seek judicial review of a denial. Citing the Committee's regulations and the Freedom of Information Law, the Court of Appeals in Barrett v. Morgenthau held that:

"[i]nasmuch as the District Attorney failed to advise petitioner of the availability of an administrative appeal in the office (see, 21 NYCRR 1401.7[b]) and failed to demonstrate in the proceeding that the procedures for such an appeal had, in fact, even been established (see, Public Officers Law [section] 87[1][b], he cannot be heard to complain that petitioner failed to exhaust his administrative remedies" [74 NY 2d 907, 909 (1989)].

Therefore, an agency's records access officer, i.e., the Village Clerk, has the duty individually, or in that person's role of coordinating the response to a request, to inform a person denied access of the right to appeal, as well as the name and address of the person or body to whom an appeal may be directed.

Second, 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. Further, §89(6) of the Freedom of Information Law states that: "Nothing in this article shall be construed to limit or abridge any otherwise available right of access at law or in equity of any part to records." Therefore, if records are available pursuant to a provision of law other than the Freedom of Information Law, nothing in the Freedom of Information Law can be asserted to withhold those records.

Here I direct your attention to §3-220 of the Elections Law, which pertains to records maintained by county boards of elections. Subdivision (1) of that statute states in part that: "All registration records, certificates, lists and inventories referred to in, or required by, this chapter [the Election Law] shall be public records..." As such, registration records maintained by a county board of elections are clearly accessible to the public.

Separate from those records are "registers" maintained by villages. Section 15-118(7)(d) of the Village Law provides in relevant part that: "The register for each village election district shall include, as a minimum, space for the name of the voter, his address within the village and a space for his or her signature to be signed by the voter on election day."

While the registration records of a county board of elections identify those registered to vote, I believe that the registers maintained by a village identify those who in fact voted in a given election. Since registration records are available from a board of elections under the Election Law, equivalent records, i.e., those that you have requested, would in my view be available from the Village under the Freedom of Information Law.

Lastly, since you indicated that you are interested in comparing the records in question with school district voter records, I point out that §2606 of the Education Law, entitled "Registration of voters", describes the procedure for the preparation of "registers" of voters in school districts. The registers are apparently based upon lists of those who voted in a prior election and new registrants. The first sentence of subdivision (6) of §2606 states that:

"The registers prepared as provided in this section shall, immediately upon completion and not less than two weeks prior to the time set for the school election that they are to be used, be filed in the office of the clerk of the board of education, and thereafter shall at all reasonable times be open to inspection by any qualified voter of the school district."

In view of the foregoing, I believe that a list of those who voted in a school district election would also be accessible to the public.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Gedalye Szegedin, Village Clerk
Board of Trustees