May 4, 1995



Ms. Josephine Soto
141 South Lake Avenue
Albany, NY 12208

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. Soto:

I have received your letter of March 30 and the correspondence relating to it. You have complained that, as of the date of your letter, you had not obtained a response to your request made under the Freedom of Information Law directed to Stephen Blow of the Public Service Commission (PSC) on March 5.

In your request, you sought a variety of information pertaining to Ms. Fran King, a hearing officer with the PSC's Consumer Service Division. I have attempted to contact Mr. Blow to discuss the status of your request without success. Nevertheless, I offer the following comments.

First, I point out 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 agency officials may choose to answer questions or to provide information by responding to questions, 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 conjunction with the foregoing, the PSC in my opinion is not required to provide information by providing, as you suggested, "yes or no" answers to questions. Similarly since you asked for a variety of "breakdowns" or tabulations, the agency would not be required to prepare new records or develop statistics or tabulations on your behalf. In short, insofar as the information sought does not exist in the form of a record or records, the PSC would not be obliged to prepare new records in response to your request for information.

Second, while many details regarding one's public employment may be accessible, those pertaining to one's private employment could, in my view, be withheld.

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. One of the grounds for denial, §87(2)(b), authorizes an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." Further, §89(2)(b) includes a series of examples of unwarranted invasions of personal privacy, the first of which involves "disclosure of employment, medical or credit histories or personal references of applicants for employment." Since employment histories may be withheld, I do not believe that the PSC would be obliged to disclose records indicating Ms. King's "previous employment with NIMO or other utilities." As a public employee, however, it is clear that Ms. King's title, grade, duration of public employment and time of employment in her current position would be matters of public record that must be disclosed.

Lastly, 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)].

I hope that the foregoing serves to enhance your understanding of the Freedom of Information Law and that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Steven Blow, Records Access Officer