April 14, 1995
Ms. Jane A. Compitello
9 East Genesee Street
Clyde, NY 14433
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. Compitello:
I have received your letter of March 11 concerning your efforts to obtain records from the Clyde-Savannah Public Library relating to an agreement to purchase a building for a library.
You wrote that on March 10, you phoned the manager of the Library, requested copies of the agreement and newly adopted by-laws, and sent a messenger to pick them up. Although the messenger acquired a copy of the by-laws, a note was attached indicating that the agreement could not be located and that the President of the Library Board of Trustees said that you must submit a request to the Board of Trustees in writing "so that they could act on it as a Board". You also requested minutes of the meeting during which the agreement was approved, and the President informed you that "a formal request would be required".
It is your view that the foregoing "is nothing but a flagrant abuse of the Freedom of Information Law, a delay tactic", and that "[a]ll proceedings and papers of any kind, agreements, etc., should be open for inspection by the citizens of [y]our community, in the hours that the library is officially open, and should be contained in the building".
In this regard, I offer the following comments.
First, based upon its language and judicial interpretation, the Freedom of Information Law is clearly intended to foster maximum public access to government records. If indeed the responses to your requests serve as "delay tactics", I would agree that the Library Board and its staff would have acted in a manner inconsistent with the intent of the Freedom of Information Law.
Second, while an agency may act in response to oral requests, it may require that requests be made in writing. Similarly, although an agency may respond instantly to a request, it is not required to do so. Section 89(3) of the Freedom of Information Law states in relevant 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..."
There may be instances in which agencies can and should in my opinion respond immediately to requests, as in the case in which it is clear that records are available by law and which they are readily retrievable. In the context of the situation that you described, the new by-laws, which are clearly public records, could apparently be located easily, and they were made available immediately in response to an oral request. In other cases, issues may exist concerning rights of access, and records may not be readily located. From my perspective, in those circumstances, the law neither requires nor would it be reasonable to expect that rights of access be determined or records disclosed immediately. While I do not believe that agencies should unnecessarily delay disclosure, under §89(3), it is clear that an agency has up to five business days to respond to a request and that it may require that a request be made in writing.
Since the President of the Board, according to your letter, indicated that the entire Board of Trustees would act on your request, I question whether that course of action is reflective of proper procedure. Section 89(1)(b)(iii) of the Freedom of Information Law requires the Committee on Open Government to promulgate regulations concerning the procedural aspects of the Law (see 21 NYCRR Part 1401). In turn, §87(1)(a) of the Law states that:
"the governing body of each public corporation shall promulgate uniform rules and regulations for all agencies in such public corporation pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article, pertaining to the administration of this article."
In this instance, it appears that the governing body of a public corporation is the Library Board of Trustees. If that is so, the Board is required to promulgate appropriate rules and regulations consistent with those adopted by the Committee on Open Government and with the Freedom of Information Law.
The initial responsibility to deal with requests is borne by an agency's records access officer, and the Committee's regulations provide direction concerning the designation and duties of a records access officer. Specifically, §1401.2 of the regulations provides in relevant part that:
"(a) The governing body of a public corporation and the head of an executive agency or governing body of other agencies shall be responsible for insuring compliance with the regulations herein, and shall designate one or more persons as records access officer by name or by specific job title and business address, who shall have the duty of coordinating agency response to public requests for access to records. The designation of one or more records access officers shall not be construed to prohibit officials who have in the past been authorized to make records or information available to the public from continuing to do so."
When a request is denied, it 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."
Further, the regulations promulgated by the Committee 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" (§1401.7).
If a request is considered in the first instance by the Board of Trustees, there may be no effective appeal if the Board denies a request.
I hope that the foregoing serves to clarify your understanding of applicable law and that I have been of assistance.
Robert J. Freeman
cc: Ms. McMahon