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June 28, 2000

FOIL-AO-12178

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

I have received your letter of May 19, as well as the materials attached to it. You
have sought an opinion concerning:

"1) Interpretation of Town Code Section 27 and the
involvement of the Records Advisory Board to review all FOIL
requests and responses."

2) The legality of this resolution with respect to the duties and
responsibilities of the RMO (Clerk) regarding FOIL's and
responses."

In this regard, Chapter 27 of the Town Code entitled "Records Management" created
a "Records Advisory Board" in subdivision 5. That entity was designated to work with and
offer advice to the records management officer. From my perspective, the duties inherent in
the position of records management officer are separate from those relating to the
implementation of the FOIL.

The position of "records management officer" is a statutory creation and is described
in Article 57-A of the Arts and Cultural Affairs Law, which is also known as the "Local
Government Records Law." Section 57.19 of the Arts and Cultural Affairs Law states in
relevant part that:

"Each local government shall have one officer who is
designated as records management officer. This officer shall
coordinate the development of and oversee such program and
shall coordinate legal disposition, including destruction of
obsolete records. In towns, the town clerk shall be the records
management officer."

Based on the foregoing, the functions of the records management officer do not deal with the
kinds of issues that arise in relation to the Freedom of Information Law, i.e., granting or
denying access to records. That being so, and in view of its duties described in §27-5, it
appears that the Records Advisory Board has no function to perform in relation to the
implementation of the Freedom of Information Law.

With respect to the responsibilities imposed by that statute, 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, such as a
town, 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
agency personnel...

(3) upon locating the records, take one of the following
actions:
(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..."

In short, the records access officer must "coordinate" an agency's response to
requests, and again, the functions of the records access officer are separate and distinct from
those of the records management officer.

As indicated earlier, the Arts and Cultural Affairs Law specifies that the records
management officer in towns is the town clerk. Under §30(1) of the Town Law, the clerk is
also the legal custodian of all town records, irrespective of who physically possesses the
records or the location of the records. Due to these functions, the records access officer in the
great majority of towns is also the town clerk.

In my opinion, implementation of the resolution may be unnecessarily cumbersome,
for there are many instances in which Town officials can respond directly to requests
pursuant to the direction given by the Clerk as part of her duty of "coordinating" the Town's
response to requests. For instance, there are many records maintained by assessors that are
clearly public, such as assessment rolls, data cards and the like, and there may be numerous
requests for those records. In my opinion, there is no good reason for requiring the assessor
to submit records that are clearly public to the Clerk prior to disclosure. Similarly, the
assessor likely maintains tax returns submitted by senior citizens seeking exemptions. It is
clear that those records may be withheld under §87(2)(b) of the Freedom of Information Law
on the ground that disclosure would constitute "an unwarranted invasion of personal
privacy." There is no reason in my opinion to transfer those records, if they are requested, to
the Clerk. As part of her responsibility to coordinate responses to requests, I believe that she
should have the ability to offer appropriate guidance to an assessor or other Town officials in
order to make the process of responding to requests efficient and effective.

I note that the regulations of the Committee on Open Government cited earlier specify
that the designation of a records access officer "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." I believe that the quoted provision was intended to ensure that the
Freedom of Information Law should not be an impediment to prompt responses to requests
and a recognition that many officials have routinely and as part of their duties granted direct
access to records. Further, in its statement of legislative intent, §84, the Freedom of
Information Law states that agencies should make records available "wherever and whenever
feasible." It is questionable in my view whether the resolution would enable the Town to act
efficiently and in a manner consistent with the intent of the Freedom of Information Law.

Enclosed for your review, are copies of the regulations promulgated by the
Committee on Open Government and model regulations designed to enable agencies to meet
their responsibilities in complying with the procedural aspects of the Freedom of Information
Law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director
RJF:jm
Encs.
cc: Town Board
Hon. Gail Wolanin Young, Clerk