Robert J. Freeman, Executive Director of the Committee on Open Government Advisory Opinion: Yonkers Cannot Impose the Use of It's Form

From: Martin Mc Gloin
Date: 2007/02/13 Tue PM 01:03:47 CST
To: RFreeman@dos.state.ny.us
Subject: FOILING YONKERS

Dear Mr. Freeman, I wonder if you could give me an advisory opinion as to
whether it is Lawful to only allow a FOIL request by e-mail, using a specific form, specified by a municipality, in this case the Corporation Counsel of the
City of Yonkers. The links to the City and the FOIL request form are below.
http://www.cityofyonkers.com/http://www.cityofyonkers.com/foil/index.htm if you click on the FOIL form on this link, you can download it)

This specific Adobe PDF, is locked and therefore one cannot save it to a
computer. One is asked to print it, and therefore the intention appears to be
to force those not computer literate enough to send the request by snail mail.
I have figured a way around this form, however I am very computer literate and
I would be very surprised if all who try to use this form are successfully
able to e-mail it. Actually many people have commented to me that they find it
"clunky" and do not use it at all.

So can they, the City of Yonkers, or any governing body for that matter,
force one to use this form only or is a regular e-mail format such as this very
e-mail allowed under the revisions to the FOIL Laws passed last year.

If you need clarification on anything in this communication, please do not
hesitate to contact me.

Sincerely

Martin McGloin


RESPONSE FROM ROBERT FREEMAN TODAY


June 7, 2007

E-MAIL

TO: Martin McGloin

FROM: Robert J. Freeman, Executive Director

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear Mr. McGloin:

I have received your letter and the materials attached to it. Please accept my apologies for the delay in response.

You questioned the propriety of a policy adopted by the City of Yonkers requiring that “[a]ll e-mail requests must use [its] FOIL request form.” In this regard, it has been recommended that agencies create email addresses dedicated to the receipt of requests and that forms may be developed in an effort to expedite the public’s ability to request records pursuant to the Freedom of Information Law. Further, as required by §89(3)(b) of the Freedom of Information Law, the Committee on Open Government has created model forms that may be used by the public when requesting records via email and by agencies for use in responding to those requests. However, those forms are merely recommended models or templates, and it has been advised that agencies may choose to adopt the form recommended by the Committee, alter it, or create its own form. Notwithstanding that guidance, there is nothing in the Freedom of Information Law that requires that a person seeking records must use an agency’s prescribed form. That being so, although use of the City of Yonkers form would likely be of benefit to a person seeking City records, I do not believe that the City may require those seeking records via email to use the City’s form.

I hope that I have been of assistance.

RJF:tt

cc: Corporation Counsel