August 10, 1999
Mr. Herbert A. Kline
Village of Port Dickinson
788 Chenango Street
Port Dickinson, NY 13901
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
Dear Mr. Kline:
I have received your letter of July 13 in which you sought guidance concerning the
implementation of the Freedom of Information Law. Specifically, you raised the following
"...would a village clerk have access to records maintained by
the police department in attempting to respond to an FOI
request or should he/she request the police department to
research the matter and report the results of their research to
the clerk who as records access officer will then respond to
the FOI request."
In this regard, I offer the following comments.
First, as you are aware, pursuant to §4-402 of the Village Law, the clerk is the
custodian of all village records. Therefore, even though a village clerk may not have physical
custody of records maintained by or for a village, he or she would have legal custody of the
Second, assuming that a village clerk has been designated by a board of trustees as
"records access officer", that person would have the initial authority to determine to grant or
deny access to records and, in my view, the ability to acquire and view records (unless the
records have been sealed) in an effort to carry out his or her duties.
By way of background, §89 (1) of the Freedom of Information Law requires the
Committee on Open Government to promulgate regulations concerning the procedural
implementation of that statute (21 NYCRR Part 1401). In turn, §87 (1) requires the
governing body of a public corporation to adopt rules and regulations consistent those
promulgated by the Committee and with the Freedom of Information Law. Further, §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 officers shall not
be construed to prohibit officials who have in the past been
authorized to make records or information available to the
public form continuing from doing so."
Section 1401.2 (b) of the regulations describes the duties of a records access officer
and states in part that:
"The records access officer is responsible for assuring that
(3) upon locating the records, take one of the following
(i) make records promptly available for inspection; or
(ii) deny access to the records in whole or in part and explain
in writing the reasons therefor.
(4) Upon request for copies of records:
(i) make a copy available upon payment or offer to pay
established fees, if any; or
(ii) permit the requester to copy those records..."
Based on the foregoing, the records access officer must "coordinate" an agency's
response to requests. As part of that coordination, the records access officer may in my
opinion consult with staff at the Police Department without actually reviewing records, or he
or she may obtain the records for the purpose of reviewing them in an effort to determine the
extent to which they must be disclosed.
I hope that I have been of assistance.
Robert J. Freeman