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August 7, 1998

 

Hon. Debra J. Mazzarelli
Member of the Assembly
228 Waverly Avenue
Patchogue, NY 11772

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 Assemblywoman Mazzarelli:

I have received your letter of August 3 and the application by a constituent for access
to records attached to it.

The constituent's request involves the number of marriages performed by a particular
Village Justice between certain dates and the fees paid to him. The request was denied on the
ground that "the records are not maintained in Village Hall." You wrote that "[I]t would
appear that a resident would have to know where all records are stored before they could
request a copy of them, and this seems unduly burdensome..."

In this regard, I offer the following comments.

First, it is not the obligation of a person seeking records to know where they are
stored in order to request them under the Freedom of Information Law. Section 89(3) of that
statute requires that an applicant must "reasonably describe" the records. Therefore, an
applicant need not identify equested records with particularity or know where they are kept;
on the contrary, the applicant is merely required to provide sufficient information to enable
agency staff to locate the records. It is also noted that the regulations promulgated by the
Committee on Open Government (21 NYCRR Part 1401) require that each agency designate
one or more persons as "records access officer." The records access officer has the duty of
coordinating the agency's response to requests and ensuring that agency personnel assist an
applicant in identifying requested records, if necessary.

Second, it is emphasized that §86(4) of the Freedom of Information 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."

Based upon the language quoted above, documents need not be in the physical possession of
an agency to constitute agency records; so long as they are produced, kept or filed for an
agency, the courts have held they constitute "agency records", even if they are maintained
apart from an agency's premises..

For instance, in a decision rendered by the Court of Appeals, it was found that
materials received by a corporation providing services for a branch of the State University
that were kept on behalf of the University constituted "records" falling with the coverage of
the Freedom of Information Law. I point out that the Court rejected "SUNY's contention
that disclosure turns on whether the requested information is in the physical possession of the
agency", for such a view "ignores the plain language of the FOIL definition of 'records' as
information kept or held 'by, with or for an agency'" [see Encore College Bookstores, Inc. v.
Auxiliary Services Corporation of the State University of New York at Farmingdale, 87 NY
2d 410. 417 (1995)].

Similarly, it has been found that records maintained by an attorney retained by an
industrial development agency were subject to the Freedom of Information Law, even though
an agency did not possess the records, and the attorney's fees were paid by applicants before
the agency. The Court determined that the fees were generated in his capacity as counsel to
the agency, that the agency was his client, that "he comes under the authority of the Industrial
Development Agency" and that, therefore, records of payment in his possession were subject
to rights of access conferred by the Freedom of Information Law (see C.B. Smith v. County
of Rensselaer, Supreme Court, Rensselaer County, May 13, 1993).

In sum, insofar as records are maintained for an agency, I believe that the agency
would be required to direct the custodian of the records to disclose them in accordance with
the Freedom of Information Law or obtain them in order to disclose them to the extent
required by law.

Lastly, it is doubtful in my view that the Village maintains records that are the subject
of your constituent's interest. Applications for marriage licenses and copies of those records
are issued and maintained by town and city clerks. It is possible that a review of records
maintained by the town clerk would enable the constituent to determine the number of
marriage ceremonies performed by a particular judge. Although a village justice may perform
a marriage, I do not believe that a justice can charge a fee that results in the preparation of
a record maintained either by a village or a village justice court. While it is possible that
village justices may obtain money or items of value for performing a marriage ceremony, that
kind of payment is, according to the Office of Court Administration, generally made as a gift.
Moreover, such gifts may be given despite statutes dealing with conflicts of interest and the
acceptance of gifts, so long as a marriage ceremony is performed at a time other than "normal
hours of business." Specifically, §805-b of the General Municipal Law entitled
"Solemnization of marriages" states that:

"Notwithstanding any statute, law or rule to the contrary, no
public officer listed in section eleven of the domestic relations
law shall be prohibited from accepting any gift or benefit
having a value of seventy-five dollars or less, whether in the
form of money, property, services or entertainment, for the
solemnization of a marriage by such public officer at a time
and place other than the public officer's normal public place of
business, during normal hours of business. For the purpose of
this section, a town or village judge's normal hours of business
shall mean those hours only which are official scheduled by the
court for the performing of the judicial function."

As I understand the foregoing, if a marriage is performed outside of a village judge's normal
hours of business, he or she is not prohibited from accepting money or other items of value.
Further, I know of no requirement in that circumstance that a record must be prepared or filed
with a court or village office.

I hope that the foregoing serves to clarify your understanding of the matter and that
I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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