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March 17, 2000

FOIL-AO-12001

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, unless otherwise indicated.

Dear

As you are aware, I have received your letter of January 31. You have requested an
advisory opinion concerning a request for records of the Village of Ballston Spa.
Specifically, you sought "copies of the village police department's monthly checking account
statements, checks and deposits from Jan. 1990 to present."

In relation to the foregoing, you asked whether "those records – which are missing
and were unavailable to the state comptroller during its on-going examination of the police
department – must be provided even if those statements are maintained at another site, the
Ballston Spa National Bank." You added that a representative of the State Archives and
Records Administration informed you that the minimum period of retention concerning the
records at issue is six years. Consequently, you asked whether the Village "should be
allowed to charge to provide such documents."

In this regard, I offer the following comments.

First, 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. Based on the correspondence, as well as conversations with you and the Village Clerk,
there does not appear to be an issue involving rights of access to the records or any
contention that they may be withheld in accordance with the grounds for denial.

Second, as I understand the matter, among the records sought, those covering the
period of the last six years, should be maintained by the Village. I note that the Freedom of
Information Law does not pertain to the retention and disposal of records. Relevant,
however, is the "Local Government Records Law", Article 57-A of the Arts and Cultural
Affairs Law, which deals with the management, custody, retention and disposal of records by
local governments. For purposes of those provisions, §57.17(4) of the Arts and Cultural
Affairs Law defines "record" to mean:

"...any book, paper, map, photograph, or other information-
recording device, regardless of physical form or characteristic,
that is made, produced, executed, or received by any local
government or officer thereof pursuant to law or in connection
with the transaction of public business. Record as used herein
shall not be deemed to include library materials, extra copies of
documents created only for convenience of reference, and
stocks of publications."

With respect to the retention and disposal of records, §57.25 of the Arts and Cultural
Affairs Law states in relevant part that:

"1. It shall be the responsibility of every local officer to
maintain records to adequately document the transaction of
public business and the services and programs for which such
officer is responsible; to retain and have custody of such
records for so long as the records are needed for the conduct of
the business of the office; to adequately protect such records; to
cooperate with the local government's records management
officer on programs for the orderly and efficient management
of records including identification and management of inactive
records and identification and preservation of records of
enduring value; to dispose of records in accordance with legal
requirements; and to pass on to his successor records needed
for the continuing conduct of business of the office...

2. No local officer shall destroy, sell or otherwise dispose of
any public record without the consent of the commissioner of
education. The commissioner of education shall, after
consultation with other state agencies and with local
government officers, determine the minimum length of time
that records need to be retained. Such commissioner is
authorized to develop, adopt by regulation, issue and distribute
to local governments retention and disposal schedules
establishing minimum retention periods..."

In view of the foregoing, records cannot be destroyed without the consent of the
Commissioner of Education, and local officials cannot destroy or dispose of records until the
minimum period for the retention of the records has been reached. The provisions relating to
the retention and disposal of records are carried out by a unit of the State Education
Department, the State Archives and Records Administration, and based on information
provided by that agency, the records in question must be retained for a minimum of six years.
If that is so, although the Village does not have physical custody of the records, it is required
to have custody for a minimum of six years and should have records in its possession
covering at least that period.

Third, according to your letter, the bank used by the Village maintains duplicates of
the records that the Village is required to maintain, or records equivalent in content. It is
unclear whether those records are maintained on behalf of the Village. If they are, I believe
that they would be Village records subject to the Freedom of Information Law. Section 86(4)
of that statute 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, 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).

Additionally, in a decision rendered by the Court of Appeals, the state's highest court,
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)].

Even if the records maintained by the bank are not "agency records", in view of the
requirements of the Local Government Records Law, in my opinion, it is incumbent on the
Village to acquire records from the bank to the extent necessary to comply with those
requirements. The acquisition of the records would bring the Village into compliance with
that statute and would enable Village and other agency officials, as well as the public, to treat
those records as they would have been treated had they been maintained by the Village in full
compliance with law.

In sum, insofar as the bank maintains records for the Village, I believe that they are
agency records that fall within the coverage of the Freedom of Information Law. In
responding to a request for those records, the Village in my view would be required either to
direct the bank to disclose the records to the extent required by that statute, or obtain copies
of the records for the purpose of reviewing and disclosing them in accordance with law. If
they are not agency records, to satisfy the requirements of the Local Government Records
Law, I believe that the Village is obliged to acquire from the bank those records that it is
required to maintain for a minimum of six years.

In either case, if and when the records are kept or held by the Village, the basis for
charging fees in my opinion would be the Freedom of Information Law. Under §87(1)(b)(iii)
of that statute, there is no charge for the inspection of accessible records; for photocopies up
to nine by fourteen inches, the fee is a maximum of twenty-five cents per photocopy; for
records that cannot be photocopied, such as computer tapes or disks, the fee is based on the
actual cost of reproduction, i.e., computer time and the cost of a tape, a disk, or the paper
used to print out records. I believe that the acquisition of bank records by the Village should
be considered to be the means of complying with the Local Government Records Law, since
that law requires that the Village maintain the records for at least six years. Any cost
incurred by the Village to do so would in my view be separate and distinct from fees
associated with requests made under the Freedom of Information Law. Again, the Village,
by law, is required to maintain the records, and its failure to do so should not in my opinion
result in any additional charge to a person seeking the records under the Freedom of
Information Law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Board of Trustees
Patricia A. Bowers