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February 23, 1998




Ms. RaeAnn Fitch
300 Boston Road
Mattydale, NY 13211

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. Fitch:

I have received your letter of January 23 in which you raised questions
concerning your request for tape recordings of a meeting of the Town Board
of the Town of Salina.

According to your letter, in response to your written request for the
tape recording of a meeting in which you offered to pay the requisite fees, the
Town Clerk indicated that the tape would be prepared and made available on
a certain date. Nevertheless, the Supervisor later asked the Clerk why you
wanted the tape. The Clerk indicated that she was unaware of your reason,
that your reason "didn't matter" and that you were entitled to it.
Nevertheless, you wrote that "[t]he Supervisor proceeded to take the tape and
said that if [you] wanted it, [you] would have to go through her."

In this regard, I offer the following comments.

First, it has been held that when records are accessible under the
Freedom of Information Law, they should be made equally available to any
person, regardless of one's status, interest or the intended use of the records
[see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d
165 (1976)]. Moreover, the Court of Appeals, the State's highest court, has
held that:

"FOIL does not require that the party
requesting records make any showing of need,
good faith or legitimate purpose; while its
purpose may be to shed light on government
decision-making, its ambit is not confined to
records actually used in the decision-making
process. (Matter of Westchester Rockland
Newspapers v. Kimball, 50 NY2d 575, 581.)
Full disclosure by public agencies is, under
FOIL, a public right and in the public interest,
irrespective of the status or need of the person
making the request" [Farbman v. New York
City Health and Hospitals Corporation, 62 NY
2d 75, 80 (1984)].
Therefore, once it is determined that a record is accessible under the law, I
believe that it must be made available unconditionally, irrespective of its
intended use.

Second, from my perspective, it is unlikely that the Supervisor should
have played any role with respect to the request. I note that §30 of the Town
Law states in part that the town clerk "Shall have the custody of all the
records, books and papers of the town." Additionally, the Town Clerk, by
statute, is the Town's "records management officer" (see Arts and Cultural
Affairs Law, Article 5-A).

Further, it is noted that §89(1)(b)(iii) of the Freedom of Information
Law requires the Committee on Open Government to promulgate regulations
concerning the procedural aspects of the Law (see 21 NYCRR Part 1401).
In turn, §87(1)(a) of the Law states that:

"the governing body of each public
corporation shall promulgate uniform rules and
regulations for all agencies in such public
corporation pursuant to such general rules and
regulations as may be promulgated by the
committee on open government in conformity
with the provisions of this article, pertaining to
the administration of this article."

In this instance, the governing body of a public corporation, the Town Board,
is required to promulgate appropriate rules and regulations consistent with
those adopted by the Committee on Open Government and with the Freedom
of Information Law.

The initial responsibility to deal with requests is borne by an agency's
records access officer, and the Committee's regulations provide direction
concerning the designation and duties of a records access officer. Specifically,
§1401.2 of the regulations provides in relevant part that:

"(a) The governing body of a public
corporation and the head of an executive
agency or governing body of other agencies
shall be responsible for insuring compliance
with the regulations herein, and shall designate
one or more persons as records access officer
by name or by specific job title and business
address, who shall have the duty of
coordinating agency response to public
requests for access to records. The
designation of one or more records access
officers shall not be construed to prohibit
officials who have in the past been authorized
to make records or information available to the
public from continuing to do so."

As such, the Town Board has the ability to designate "one or more persons
as records access officer". Further, §1401.2(b) of the regulations describes
the duties of a records access officer, including the duty to coordinate the
agency's response to requests. If the Town Clerk has been designated records
access officer, I believe that she has the authority to make initial
determinations to grant or deny access to records in response to requests
made under the Freedom of Information Law; the Supervisor would not have
such authority.

Lastly, with respect to the substance of your request, the Freedom of
Information Law pertains to agency records, and §86(4) of the Law defines
the term "record" expansively to include:

"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."

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. In
my view, a tape recording of an open meeting is accessible, for you were
present, and none of the grounds for denial would apply. Moreover, there is
case law indicating that a tape recording of an open meeting is a "record"
accessible for listening and/or copying under the Freedom of Information Law
[see Zaleski v. Board of Education of Hicksville Union Free School District,
Supreme Court, Nassau County, NYLJ, December 27, 1978].

Moreover, since a person present at an open meeting of a public body
could have tape recorded the proceedings [see Mitchell v. Board of Education
of the Garden City Union Free School District, 113 AD 2d 924 (1985)], I do
not believe that there would be a valid basis for withholding the tape.

In an effort to enhance compliance with and understanding of the
Freedom of Information Law, copies of this response will be forwarded to the
Town Supervisor and the Town Clerk.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:jm

cc: Town Clerk
Town Supervisor