March 15, 1996



Mr. Timothy Rupert
Clinton Correctional Facility
P.O. Box 2001
Dannemora, NY 12929

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 Mr. Rupert:

I have received your letter of February 25. Enclosed are copies of the advisory opinions that you requested, as well as the Committee's latest annual report.

You also sought guidance concerning your right to obtain registration records from the Albany and Clinton County Board of Elections.

In this regard, I offer the following comments.

First, 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.

Second, when a request is denied, either in writing or by means of a failure to respond in accordance with §89(3) of the Freedom of Information Law, the applicant may appeal the denial. By way of background, 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)].

Lastly, while I cannot advise of its specific authority, complaints concerning the Election Law may be directed to the State Board of Elections. I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Albany County Board of Elections
Clinton County Board of Elections