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June 1, 2001

FOIL-AO-12696

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 in which you sought my opinion concerning "the erasing of a taped
meeting of the town planning board which [you] requested verbally and in writing to the planning
secretary and chairman." You indicated that the Chairman informed you that the tape "was
unavailable because he destroyed it."

In this regard, I offer the following comments.

First, irrespective of who might have had physical possession of the tape recording of the
meeting, I believe that you, as Town Clerk, had legal custody. As you are likely aware, §30 of the
Town Law states in part that the town clerk "shall have the custody of all the records, books and
papers of the town."

Second, the tape recording of the meeting in my view clearly fell within the coverage of the
Freedom of Information Law. That statute pertains to agency records, and §86(4) of the 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 on the foregoing, when a town maintains a tape recording of a meeting, the tape would
constitute a "record" that falls within the coverage of the Freedom of Information Law, irrespective
of the reason for which the recording was prepared.

As a general matter, 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. In
my view, a tape recording of an open meeting is accessible, for any person could have been present,
and none of the grounds for denial would apply. Moreover, there is case law indicating that a tape
recording of an open meeting is accessible for listening and/or copying under the Freedom of
Information Law [see Zaleski v. Board of Education of Hicksville Union Free School District,
Supreme Court, Nassau County, NYLJ, December 27, 1978].

Third, 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.

Since questions regarding the retention of tape recordings of open meetings have been the
subject of numerous questions over the course of time, I would add that the minimum retention
period for such records is four months. Assuming that the meeting that was recorded occurred less
than four months ago, I do not believe that the Chairman of the Planning Board or any other person
would have had the right or the authority to destroy the tape recording.

Lastly, for your information, I point out that §240.65 of the Penal Law states that:

"A person is guilty of unlawful prevention of public access to records
when, with intent to prevent the public inspection of a record
pursuant to article six of the public officers law, he willfully conceals
or destroys any such record."

Article Six of the Public Officers Law is the Freedom of Information Law, and §89(8) of that statute
includes analogous language.

From my perspective, those provisions may be applicable in two circumstances: first, when
an agency officer or employee receives a request for a record and indicates that the agency does not
maintain the record even though he or she knows that the agency does maintain the record; or
second, when an agency officer or employee destroys a record following a request for that record in
order to prevent disclosure of the record.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Town Board
Chairman, Planning Board