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August 30, 2001

FOIL-AO-12923

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 letters of July 26 and August 11 in which you raised questions relating
to access to records.

The first issue involves the application of the Freedom of Information Law to a tape
recording prepared by a member of the Town Board. You wrote that the it was alleged that you
made an error in your minutes of a meeting, and that your error could be proven by hearing the
recording. Nevertheless, your request for the tape was denied, and the member, Mr. Michael J.
Contino, wrote that it is his personal property. He added that:

"I have found it necessary to make those tapes of the Henderson
Town Board Meetings in order to protect myself. It is unfortunate
that a Town Official would have to do this but I find that the tapes
force you to keep the Town minutes more accurately and others to be
more truthful in their discussions concerning Town business. These
tapes are and have been a great benefit to me and friends of mine
currently in office."

In this regard, the Freedom of Information Law applies to agency records, and §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, or as in this instance, tape recordings, 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.

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)].

Perhaps most significantly, in the first decision in which the Court of Appeals dealt squarely
with the scope of the term "record", the matter involved documents pertaining to a lottery sponsored
by a fire department. Although the agency contended that the documents did not pertain to the
performance of its official duties, i.e., fighting fires, but rather to a "nongovernmental" activity, the
Court rejected the claim of a "governmental versus nongovernmental dichotomy" and found that the
documents constituted "records" subject to rights of access granted by the Law. Moreover, the Court
determined that:

"The statutory definition of 'record' makes nothing turn on the
purpose for which it relates. This conclusion accords with the spirit
as well as the letter of the statute. For not only are the expanding
boundaries of governmental activity increasingly difficult to draw, but
in perception, if not in actuality, there is bound to be considerable
crossover between governmental and nongovernmental activities,
especially where both are carried on by the same person or persons"
[Westchester-Rockland Newspapers v. Kimball, 50 NY2d 575, 581
(1980)].

The point made in the final sentence of the passage quoted above appears to be especially relevant,
for there appears to be "considerable crossover" in the activities of Mr. Contino as a private citizen
and as a member of the Town Board.

On the basis of Mr. Contino's statement, he records Town Board meetings and keeps
recordings of those meetings "to protect" himself, and to ensure that the minutes that you prepare
are accurate. Further, he specified that the tapes have been of "great benefit" to him and to
"friends...currently in office." From my perspective, his statement indicates that the tapes are
prepared because he is a Board member, and that they are used by him and other government
officials in their capacities as government officials. In consideration of Mr. Contino's statement,
even though he uses his own tape recorder and purchases the tapes, I believe that those portions of
the tapes that consist of recordings of Town Board meetings constitute "records" that fall within the
scope of the Freedom of Information Law. In short, the tapes, according to Mr. Contino, were
prepared in conjunction with the performance of his duties as a Town Board member.

That being so, I believe that you or any member of the public should have the ability to listen
to a tape at no charge. If a copy is requested, the fee, based on §87(1)(b)(iii) of the Freedom of
Information Law, would involve the actual cost of reproduction (i.e., the cost of a new tape).

Your second area of inquiry involves the right of a Board member to see "everything" kept
in the Town's files. 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 law, 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.

Also pertinent is 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 are 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.

Lastly, you asked whether it is "against the law...to have the Town Supervisor's file in [your]
Clerk's room." Although the question does not relate to the Freedom of Information Law, I know
of no law that so specifies.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Michael J. Contino