State says CB7 may not withhold documents

Sent to elected officials:

The forwarded email below from the Executive Director of the Committee on Open Government confirms that Queens Community Board 7 is presently failing to comply with the New York State Freedom of Information Law, by deliberately imposing an arbitrary delay on the disclosure of records that are responsive to our FOIL Request. We are writing to inform you of this violation of FOIL and to formally request your immediate assistance, to encourage CB7 to comply with FOIL by immediately granting access to the requested records. The deliberate non-compliance of CB7 with FOIL and the associated denial of our rights is outrageous and we hereby ask your assistance to put a stop to it. Please advise us of any action that you are taking to help us to resolve this important matter.
- Malba Gardens Civic Association

From: Robert.Freeman@dos.state.ny.us
To: aj4cc@hotmail.com
CC: malbagardenscivicassociation@hotmail.com; gn07@cbnyc.gov
Date: Mon, 26 Apr 2010 12:28:39 -0400
Subject:

Dear Mr. Joyce:

By way of introduction, this office, a unit of the Department of State, is authorized by the Freedom of Information Law [“FOIL”; §89(1)] to provide advice and opinions relating to that statute to any person. In conjunction with that function, I have spoken with and received material from Mr. Alfredo Centola, who is particularly interested in gaining access to a certain survey which, according to CB7’s District Manager, is in your possession. She also indicated that there was an agreement among members of a Board committee that the survey would not be disclosed until the Board meets tomorrow evening.

Based on the information provided by both Mr. Centola and Ms. Bitterman, your District Manager, I offer the following comments

First, FOIL is applicable to all records of a government agency, such as CB7, and defines the term “record” in §86(4) to mean any information, in any physical form whatsoever that is kept, held, filed, produced, or reproduced by, with or for an agency. That being so, as soon as the survey existed, irrespective of its physical location, it constituted a “record” falling within the coverage of FOIL.

Second, as a general matter, FOIL is based on a presumption of access, stating that all records are available, except those records or portions of records that fall within a series of grounds for denial of access appearing in paragraphs (a) through (k) of §87(2). If my understanding of the survey is accurate, none of the grounds for denial would serve to permit the Board to withhold the information of Mr. Centola’s interest. I note that insofar as internal governmental communications, such as a survey prepared by the Board or perhaps by a consultant retained by the Board, consist of “statistical or factual tabulations or data”, §87(2)(g)(i) requires disclosure.

Third, it has been found by the courts on many occasions that a promise or agreement conferring confidentiality or its equivalent is irrelevant; in short, unless there is an exception to rights of access that may properly be asserted, records must be disclosed, notwithstanding an “agreement” or desire to withhold records.

Fourth, FOIL includes time limits within which agencies must respond to requests [see §89(3)(a)], and its statement of intent, §84, indicates that agencies, to comply with the spirit of the law, must make records available “wherever and whenever feasible.” From my perspective, when records are clearly available and readily retrievable or accessible, there is rarely a valid reason for delaying disclosure.

Next, the regulations promulgated by the Committee on Open Government (21 NYCRR Part 1401) require that each agency designate at least one “records access officer.” The records access officer has the duty of coordinating an agency’s response to requests for records. In addition, when a request is denied in whole or in part, either based on reference to an exception to rights of access or due to a failure to respond within the requisite time, the person denied access has the right to appeal pursuant to §89(4)(a). That provision indicates that the appeal would be made to the governing body, the Board in this instance, or to a person or body designated by the Board.

Lastly, Ms. Bitterman suggested that she was advised that requests for records must be made by letter. If she has been so informed, the information is inaccurate. Section 89(3)(b), an amendment to FOIL enacted in 2006, states that “All entities shall, provided such entity has reasonable means available, accept requests for records submitted in the form of electronic mail and shall respond to such requests by electronic mail….to the extent practicable.”

I hope that the foregoing serves to enhance understanding of and compliance with FOIL. Should you have questions, or if you would like to discuss the matter, please feel free to contact me.


Robert J. Freeman
Executive Director
Committee on Open Government
Department of State
One Commerce Plaza
Suite 650
99 Washington Avenue
Albany, NY 12231
Phone: (518)474-2518
Fax: (518)474-1927
Website: www.dos.state.ny.us/coog/index.html