May 27, 2003
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
I have received your letter in which you indicated that "many town officials have repeatedly requested a copy of [y]our senior citizen housing list from the Department of Intergovernmental Affairs", but that the Department has not responded. You also wrote that, as Town Clerk, you "FOILed for this information and have not received a response", and you have sought guidance in the matter.
In this regard, first, 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, when 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 Town official should not generally be required to resort to the Freedom of Information Law in order to seek or obtain Town records.
Second, although the Department of Intergovernmental Affairs may have physical possession of the record at issue, I do not believe that it has legal custody or control of the record. As you are likely aware, subdivision (1) of §30 of the Town Law states that the town clerk "[s]hall have the custody of all the records, books and papers of the town" (emphasis added). Therefore, irrespective of where in the Town records may be kept, I believe that they are in your legal custody as Town Clerk. Additionally, consistent with that provision is §57.19 of the Arts and Cultural Affairs Law, which states in part that a town clerk is the "records management officer" for a town.
Third, the failure to share the records or to inform the clerk of their existence may effectively preclude you from carrying out your duties as records management officer, as well as your responsibilities if you have been designated as records access officer for purposes of responding to requests under the Freedom of Information Law. In short, if you, as records access officer, cannot obtain Town records, you may not have the ability to grant or deny access to records in a manner consistent with the requirements of the Freedom of Information Law.
With respect to the implementation of the Freedom of Information Law, §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 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.
In this instance, again, regardless of their physical location, I believe that all Town records fall within the scope of your legal custody. If the Department of Intergovernmental Affairs fails recognize its role in the matter or cooperate with you to enable you to carry out your duties, it is suggested that you bring the matter to the Town Board.
In an effort to enhance understanding of applicable law, a copy of this opinion will be forwarded to the Department of Intergovernmental Affairs.
I hope that I have been of assistance.
Robert J. Freeman
cc: Department of Intergovernmental Affairs