March 4, 1996



Ms. Laura Boyd
Associate Appellate Counsel
The Legal Aid Society
Criminal Appeals Bureau
15 Park Row
New York, NY 10038

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. Boyd:

I have received your letter of February 13, as well as the correspondence attached to it. You have sought an advisory opinion concerning the adequacy of a request for records directed to the New York City Police Department.

By way of background, in a letter of August 22, 1995 sent to the Department's records access officer, you requested:

"All police reports filed pursuant to the investigation of Bronx County Docket No. 91X016811; specifically, all reports of Police Officer Pusins, shield no. 03542, as well as all noted written and reports filed pursuant to interviews with Eva Muniz."

In addition to citing the name of the case to which the records relate and providing the docket number and shield number of the arresting officer, you also provided in your letter an arrest number, the date of the arrest, and the defendant's NYSID number, her date of birth and her social security number. Notwithstanding the variety of identifying details in the request, you were informed in a response dated January 25, 1996, more than five months after submitting the request, that the Department was "unable to access any records on the basis that your request is to [sic] broad in nature and does not reasonably describe a specific document."

In this regard, I offer the following comments.

First, the Freedom of Information Law does not require, as the response to your request suggests, that an applicant seek or describe "a specific document." When that statute was initially enacted in 1974, it required that an applicant request "identifiable" records. Therefore, if an applicant could not name the record sought or "identify" it with particularity, that person could not meet the standard of requesting identifiable records. In an effort to enhance its purposes, 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 by the Court of Appeals 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)].

The Court in Konigsberg found that the agency could not reject the request due to its breadth and also stated that:

"respondents have failed to supply any proof whatsoever as to the nature - or even the existence - of their indexing system: whether the Department's files were indexed in a manner that would enable the identification and location of documents in their possession (cf. National Cable Tel. Assn. v Federal Communications Commn., 479 F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability under Federal Freedom of Information Act, 5 USC section 552 (a) (3), may be presented where agency's indexing system was such that 'the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency'])" (id. at 250).

In my view, whether a request reasonably describes the records sought, as suggested by the Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing or record-keeping system. In Konigsberg, it appears that the agency was able to locate the records on the basis of an inmate's name and identification number.

While I am unfamiliar with the Department's recordkeeping systems, it seems unlikely that staff could not locate records pertaining to a case when the array of information that you provided is included in a request. Assuming that the records sought can be located with reasonable effort, I believe that your request would have met the requirement that you "reasonably describe" the records. Notwithstanding the foregoing, there was no indication in the response of the means by which or the information needed to be supplied in order to meet the Department's standard.

Moreover, 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)].

Second, the lapse of time between your request and the Department's response in my opinion represented a constructive denial of access. I note that the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3) of that statute 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. Similarly, if an agency acknowledges the receipt of a request but fails to provide a "statement of the approximate date when such request will be granted or denied," the agency in my view would have failed to comply with §89(3). In a situation in which the court found that a request was constructively denied, it was stated that:

"The acknowledgement letters in this proceeding neither granted nor denied petitioner's request nor approximated a determination date. Rather, the letters were open ended as to time as they stated, 'that a period of time would be required to ascertain whether such documents do exist, and if they did, whether they qualify for inspection'.

"This court finds that respondent's actions and/or inactions placed petitioner in a 'Catch 22' position. The petitioner, relying on the respondent's representation, anticipated a determination to her request. While the petitioner may have been well advised to seek an appeal...this court finds that this petitioner should not be penalized for respondent's failure to comply with Public Officers Law §89(3), especially when petitioner was advised by respondent that a decision concerning her application would be forthcoming...

"It should also be noted that petitioner did not sit idle during this period but rather made numerous efforts to obtain a decision from respondent including the submission of a follow up letter to the Records Access Officer and submission of various requests for said records with the different offices of the Department of Transportation.

"Therefore, this court finds that respondent is estopped from asserting that this proceeding is improper due to petitioner's failure to appeal the denial of access to records within 30 days to the agency head, as provided in Public Officers Law §89(4)(a)" (Bernstein v. City of New York, Supreme Court, NYLJ, November 7, 1990).

When a request is constructively denied or denied in writing, 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 I have been of assistance.



Robert J. Freeman
Executive Director


cc: Karen A. Pakstis, Assistant Commissioner
Lt. Glen A. Suarez