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FOIL-AO-12311 September 5, 2000

Dear

I have received your letter of August 1 and the materials attached to it. You have asked
whether the records that you requested from the Enlarged School District of the City of
Watervliet must be retained for seven years or similar period.

In this regard, I offer the following comments.

First, you cited 5 USC §§552 and 552a as the basis for your request to the District. Those
statutes are, respectively, the federal Freedom of Information and Privacy Acts, and they apply
only to records maintained by federal agencies. The statute dealing with access to records of
state and local government in New York is the New York Freedom of Information Law.

Second, the Freedom of Information Law does not address issues involving the retention
and disposal of records. Article 57-A of the Arts and Cultural Affairs Law, 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."

Further, §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..."

Based on the foregoing, records cannot be destroyed without the consent of the Commissioner of
Education, and local officials must "have custody" and "adequately protect" records until the
minimum period for the retention of the records has been reached. The functions of the
Commissioner in relation to the foregoing are carried out by the State Archives and Records
Administration (SARA), a unit of the State Education Department. A copy of the applicable
retention schedule is likely maintained by the District Clerk, or alternatively, it can be obtained
from SARA, which can be reached at 474-6926.

Lastly, you referred to an appeal made to this office. In this regard, the Committee on
Open Government is authorized to provide advice concerning public access to government
records; it is not empowered to determine appeals or compel an agency to grant or deny access to
records. The provision dealing with the right to appeal is §89(4)(a) of the Freedom of
Information Law, which states in relevant part that:

"...any person denied access to a record may within thirty days
appeal in writing such denial to the head, chief executive or
governing body of the entity , or the person therefor designated by
such head, chief executive, or governing body, who shall within
ten business days of the receipt of such appeal fully explain in
writing to the person requesting the record the reasons for further
denial, or provide access to the record sought."

 

 

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:jm

 

cc: Carol Carlson
Stephen F. Bailly