May 28, 2004
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, and I appreciate your kind words. You asked that I confirm the response given during a presentation during which I spoke at the annual meeting of the Association of Towns.
You wrote that the prior Town Supervisor provided copies of "all correspondences" during her tenure of office to the Town Clerk, the Town Board and other "involved parties." Further, at the end of her term, "she downloaded several discs of information, templates and lists for the incoming Supervisor...[and] provided the clerk with hard copies of all these files." She then "cleared the electronic files from her computer and her secretary’s computer." You asked during my presentation whether "there [is] a problem with this scenario", and I suggested that there was no problem, for if the Town Clerk, as "the keeper of the record", has hard copies, no records would have been destroyed.
In this regard, although I responded as I did in an effort to provide a service and information for those present, the matter does not directly relate to the Freedom of Information Law. That statute deals generally with the extent to which government records must be disclosed or may be withheld. It does not pertain to the custody, maintenance or preservation of records. Nevertheless, it is reiterated that the Town Clerk, pursuant to §30(1) of the Town Law, is the legal custodian of all Town records, irrespective of the physical custody or location of the records.
With respect to the retention and disposal of records, §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..."
As such, records cannot be destroyed without the consent of the Commissioner of Education, and local officials cannot destroy or dispose of records until the minimum period for the retention of the records has been reached.
Lastly, §57.29 of the Education Law states that:
"Any local officer may reproduce any record in his custody by microphotography or other means that accurately and completely reproduces all the information in the record. Such official may then dispose of the original record even though it has not met the prescribed minimum legal retention period, provided that the process for reproduction and the provisions made for preserving and examining the copy meet requirements established by the commissioner of education. Such copy shall be deemed to be an original record for all purposes, including introduction as evidence in proceedings before all courts and administrative agencies."
If you have questions relating to records management or the retention and disposal of records, it suggested that you contact the State Archives, the unit within the State Education Department that has special expertise in those areas.
I hope that I have been of assistance.
Robert J. Freeman