NY.gov Portal State Agency Listing

 

August 27, 2001

FOIL-AO-12910

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 asked whether "a town board member who is acting
on his own [has] the right to obtain town records at any time for any reason." Additionally, you
questioned your role as "records management officer."

In this regard, I offer the following comments.

First, I do not believe that a board member, "acting on his own", necessarily has the right to
obtain all town records "at any time for any reason."

By way of background, from my perspective, the Freedom of Information Law is intended
to enable the public to request and obtain accessible records. Further, it has been held that accessible
records should be made equally available to any person, without regard to status or interest [see e.g.,
Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976) and M. Farbman
& Sons v. New York City, 62 NY 2d 75 (1984)]. Nevertheless, if it is clear that records are
requested in the performance of one's official duties, the request might not be viewed as having been
made under the Freedom of Information Law. In such a situation, if a request is reasonable, and in
the absence of a rule or policy to the contrary, I believe that a member of a board should not
generally be required to resort to the Freedom of Information Law in order to seek or obtain records.

However, viewing the matter from a more technical perspective, one of the functions of a
public body involves acting collectively, as an entity. A town board, as the governing body of a
public corporation, generally acts by means of motions carried by an affirmative vote of a majority
of its total membership (see General Construction Law, §41; also Town Law, §63). In my view, in
most instances, a board, member acting unilaterally, without the consent or approval of a majority
of the total membership of the board, has the same rights as those accorded to a member of the
public, unless there is some right conferred upon a board member by means of law or rule. In the
absence of any such rule, a member seeking records could presumably be treated in the same manner
as the public generally.

Second, with respect to your function as "records management officer", §57.19 of the Arts
and Cultural Affairs Law states in relevant part that:

"The governing body, and the chief executive official where one
exists, shall promote and support a program for the orderly and
efficient management of records, including the identification and
appropriate administration of records with enduring value for
historical or other research. 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" (emphasis added).

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..." (emphasis added).

Related is the implementation of the Freedom of Information Law. Under §89 (1) of the
Freedom of Information Law, the Committee on Open Government is required 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."

As such, the Town Board has the duty to promulgate rules and ensure compliance. 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..."

Based on the foregoing, the records access officer must "coordinate" an agency's response
to requests. As part of that coordination, I believe that other Town officials and employees are
required to cooperate with the records access officer in an effort to enable him or her to carry out his
or her official duties. As you may be aware, because town clerks are both the legal custodians of
town records under §30 of the Town Law and the records management officer, they are in most
circumstances also designated as records access officer.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm