August 15, 1996



Mr. Wayne Jackson
c/o Saugerties Legal Services
15 Barclay St., Suite 10
Saugerties, NY 12447

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. Jackson:

I have received your letter of August 14 in which you sought my views concerning "any infractions" of the Freedom of Information Law that might have occurred in conjunction with the commentary that you offered.

According to your letter, you submitted a request on June 17 to an unnamed state agency to inspect records that in your words were "adequately described." Having received no response to the request, you appealed on June 27. Nevertheless, on July 2, you received a letter dated June 27 indicating that your request would involve several hundred dollars in copying fees, and you were asked to provide "a good faith deposit of $100." Soon thereafter, you wrote to the agency, stating that you sought to inspect records and that its request for a deposit represented an "illegal demand." In a letter of July 16, you were informed that your requests for "all material submitted" to the unnamed state agency would be denied on the ground that it was "unreasonably broad", and you were informed of the right to appeal. On July 23, you asked the agency to investigate whether "possible wrongdoing" had occurred when a deposit of $100 was requested. You appealed on August 6 and received a letter the next day dealing with the issue of the deposit and stating that "even where the request is only for the inspection of records, copying may be necessary if portions of the records need to be deleted for privacy concerns or other reasons." As such, it was advised that there was no evidence of wrongdoing.

In this regard, your letter neither identifies the agency to which the matter pertains, nor does it describe the nature or volume of the records sought. That being so, I cannot suggest that an agency engaged in "infractions"; rather, under the circumstances, I can only offer the following general remarks.

First, a primary issue appears to involve whether you met the requirement that a request "reasonably describe" the records sought. It has been held that a request reasonably describes the records when the agency can locate and identify the records based on the terms of a request, and 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)].

Although it was found in the decision cited above that the agency could not reject the request due to its breadth, it was 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. On the other hand, if particular records cannot be located except by means of a review of what may be hundreds or thousands of records individually, the request in my opinion would not reasonably describe the records. In that event, the records access officer could explain that the records are not kept in a manner that would permit their retrieval in conjunction with the terms of the request and indicate how the records are kept.

Second, with respect to what may be an unduly broad or voluminous request, I doubt that there is any way of determining exactly when those characterizations would be apt. In a decision involving a request for thousands of records, the court upheld the agency's denial, stating that:

"Petitioner's actual demand transcends a normal or routine request by a taxpayer. It violates individual privacy interests of thousands of persons...and would bring in its wake an enormous administrative burden that would interfere with the day-to-day operations of an already heavily burdened bureaucracy" (Fisher & Fisher v. Davison, Supreme Court, New York Cty., Oct. 6, 1988).

I am unfamiliar with the volume of records that you have requested. However, if the number of records is voluminous, the holding in Fisher & Fisher might be pertinent.

Third, when a record is available in its entirely under the Freedom of Information Law, any person has the right to inspect the record at no charge. However, there are often situations in which some aspects of a record, but not the entire record, may properly be withheld in accordance with the grounds for denial appearing in §87(2). In that event, I do not believe that an applicant would have the right to inspect the record. In order to obtain the accessible information, upon payment of the established fee, I believe that the agency would be obliged to disclose those portions of the records after having made appropriate deletions from a copy of the record. In short, when accessible and deniable information appear on the same page, the practice of preparing a redacted copy and charging the established fee, in my opinion, is fully justifiable.

I note, too, that it has been held that an agency may require advance payment of a fee for copying records, particularly when a request is voluminous (see Sambucci v. McGuire, Supreme Court, New York County, November 4, 1982).

Lastly, the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests and appeals. 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 I have been of assistance.



Robert J. Freeman
Executive Director