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FOIL-AO-14469

January 21, 2004

Dear

I have received your letter of December 26 in which you sought an advisory opinion concerning a request to "review approximately 5,000 historic artifacts relating to Frederic Church and the Olana State Historic Site and National Landmark." In short, it is your view that "these artifacts are not records under FOIL."

By way of background, a legal assistant with a law firm requested "Church family correspondence and diaries for the period covering 1865 up through 1873", "[a]ccounting books for Olana" and "invoices for the period covering 1865 up through 1892." You pointed out in your letter that the firm requested and was granted access to thousands of pages of documentation and that "much of the material that is sought in the current FOIL request has been digested and presented in the documents that have already been provided to the Firm..." The request at issue involves "approximately 600 items of correspondence and diaries and 4,000 items of accounting books, , checks, invoices and bills of sale", and you added that they are "stored in controlled and environmentally stable rooms, and all artifacts are stored in acid free folders with interleaving to reduce the transfer of acids or soil from one sheet to the next." You stated, too, that many of the documents were inside the structure when it was donated to the state, that others were "donated by private individuals with strict instructions for their care and limitations on their use." It is your opinion that they are "akin to the paintings on the walls, the china, the drapery, the carpeting and furniture that adorn the building and its interior", and you contend that the documents "have risen to the level of artifact."

You referred as well to the regulations promulgated by the Commissioner of Education dealing with archival records that could be damaged by means of physical access [8 NYCRR §188.27(e)] that provide that those records may be withheld or their use restricted when their "physical condition....might be endangered by use." You also sent a copy of your agency’s Guidelines for Researchers at State Historic Sites", which include provisions regarding "Handling Historic Manuscripts and Bound Materials." Since you are familiar with them, I will not recite the instructions. However, it is clear those materials are treated differently from conventional records, and that their physical use, including photocopying, could result in their destruction. I note, too, that in a "Declaration of Policy", §14.01 of the Parks, Recreation and Historic Preservation Law states that:

"The legislature determines that the historical, archeological, architectural and cultural heritage of the state is among the most important environmental assets of the state and that it should be preserved. It offers residents of the state a sense of orientation and civic identity, is fundamental to our concern for the quality of life, and produces numerous economic benefits to the state. The existence of irreplaceable properties of historical, archeological, architectural and cultural significance is threatened by the forces of change. It is hereby declared to be the public policy and in the public interest of this state to engage in comprehensive program of historic preservation to accomplish the following purposes:

1. To promote the use, reuse and conservation of such properties for the education, inspiration, welfare, recreation, prosperity and enrichment of the public;

2. To promote and encourage the protection, enhancement and perpetuation of such properties, including any improvements, landmarks, historic districts, objects and sites which have or represent elements of historical archeological, architectural or cultural significance..."

In consideration of the foregoing, the primary question is whether the materials requested constitute "records" that fall within the coverage of the Freedom of Information Law. If, as you suggest, they are artifacts or, as expressed in the provision quoted above, "objects", rather than records, that statute would be inapplicable. However, if they are indeed records subject to rights conferred by that statute, they would appear to be available for inspection and copying.

The Freedom of Information Law includes all agency records within its coverage, and §86(4) defines the term "record" expansively to mean:

"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".

The Court of Appeals has construed the definition as broadly as its specific language suggests. The first such decision that dealt squarely with the scope of the term "record" involved a case cited earlier concerning 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)].

Typically, the kinds of materials at issue, i.e., accounting books, invoices, bills of sale and the like, would clearly constitute records when they are maintained by or for an agency. Nevertheless, if they can justifiably be likened, as you suggest, to paintings, china or furniture because they are, in reality, historical "objects", it may be concluded that they do not constitute "records" and, therefore, that the Freedom of Information Law would not apply. I point out that, in a different context, it has been held that physical evidence, such as clothing and tools, that consisted of evidentiary material in a criminal proceeding, did not constitute records for the purposes of that statute [Allen v. Strojnowski, 129 AD2d 700; motion for leave to appeal denied, 70 NY2d 871 (1989)]. While a court might reach a similar conclusion with respect to the materials that have been requested, I know of no judicial decision that has considered the kinds of materials that are the subject of this inquiry.

Since the materials contain "information" in a physical form, a court, might on the other hand find that they indeed constitute agency records. Judicial decisions indicate that when records are accessible under the Freedom of Information Law, it has been held that they should be made equally available to any person, regardless of one's status, interest or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals, the State's highest court, has held that:

"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on government decision-making, its ambit is not confined to records actually used in the decision-making process. (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request" [Farbman v. New York City Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].


As stated earlier, if the materials are found to constitute "records", §87(2) of the Freedom of Information Law requires that they be made "available for public inspection and copying." If your agency is required to do so at the request of any person, whether it be a researcher or a junior high school student seeking the materials for a classroom assignment, the result would likely be the destruction of the materials and the elimination of their use or value to others.

The provisions to which reference was made earlier indicate that the materials at issue, whether they are artifacts or records, merit special treatment. In particular, §1401 of the Parks, Recreation and Historic Preservation Law indicates that it is the public policy of this state and in the public interest to promote the "protection" and "perpetuation" of the kinds of materials at issue and to preserve them for future generations. While I do not believe that §1401 may be characterized as a statute that exempts records from disclosure, when the direction offered by that statute is considered in conjunction with the Freedom of Information Law, it would be unreasonable, in my view, to require that the public at large be granted physical access to the materials. That being so, if the materials are found to be subject to the Freedom of Information Law, I believe that, of necessity, they could only be made available by means of methods that would ensure their preservation. In that circumstance, I believe that the agency would have the obligation under §1401 to ensure that the handling and reproduction of the materials is conducted by experts or conservators who have the ability to guarantee their integrity and preservation.

Further, in that event, since physical access to the public, including the firm making the request, would be restricted, and since photographs, rather than photocopies, would likely be made, I believe that the agency could assess a fee based on the actual cost of reproduction pursuant to §87(1)(b)(iii) of the Freedom of Information Law. If, for example, the agency would be required to retain a conservator, whatever costs associated with the reproduction of the materials are borne by the agency could be assessed upon the applicant.

Lastly, you indicated that some of the materials might have previously been disclosed. To the extent that the applicant continues to maintain copies of those materials, I do not believe that the agency would be required to make a second copy [see e.g., Moore v. Santucci, 151 AD2d 677 (1989); Walsh v. Wasser, 225 AD2d 911 (1996)].

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

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