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FOIL-AO-14822

July 22, 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.

Dear

I have received your letter concerning rights of access to records maintained by the Town of Wawarsing. Specifically, you expressed interest in "examining" "‘old’ maps of the early settlers of the immediate area" and the "birth, marriage and death records of a neighbor of [your] wife’s grandparents who died over 75 years ago." You also asked what the "legal precedent for ‘charges’ [is] for obtaining such records."

In this regard, I offer the following comments.

First, the Freedom of Information Law is applicable to all records of an agency, such as a town, for §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."

Second, as a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law. When records are accessible, §87(2) indicates that they are available for inspection and copying.

You wrote that the maps of your interest are "old." If handling the maps would likely result in their destruction, provisions of law separate from the Freedom of Information Law offer guidance. For instance, 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)] state that those records may be withheld or their use restricted when their "physical condition....might be endangered by use." In addition, the Office of Parks, Recreation and Historic Preservation has developed "Guidelines for Researchers at State Historic Sites", which include provisions regarding "Handling Historic Manuscripts and Bound Materials." Under those guidelines, historic materials are treated differently from conventional records, for 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..."

The provisions referenced above suggest such that old maps may 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 materials that may be damaged by means of typical disclosure methods. If the maps are delicate, I believe that, of necessity, they should only be made available by means of methods that would ensure their preservation. In that circumstance, an agency might have an obligation 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 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.

Next, although the Freedom of Information Law pertains generally to access to government records and the fees that may be charged for copies of records, provisions of the Public Health Law deal specifically with birth and death records and fees for services rendered relating to searches for and copies of those records; the Domestic Relations Law includes provisions pertaining to marriage records. In brief, §4173 of the Public Health Law permits the disclosure of birth records by a registrar only upon issuance of a court order, or to the subject of the birth record or the parent or other lawful representative of a minor. Similarly, §4174 of the Public Health Law limits the circumstances under which the Commissioner of the Department of Health or registrars of vital records (i.e., town clerks) may disclose death records and specifies that those records are not subject to the Freedom of Information Law. As such, birth and death records are generally confidential and exempt from the disclosure requirements found in the Freedom of Information Law. Section 19 of the Domestic Relations Law pertains to marriage records maintained by town and city clerks and provides that some aspects of those records are available to the public, while others may be withheld unless there is a showing of a "proper purpose" that would justify disclosure.

The Public Health Law includes provisions that deal directly with genealogical records. Specifically, subdivision (3) of §4174 refers to searches for and the fees for records sought for genealogical or research purposes that may be imposed by "any person authorized" by the State Commissioner of Health, i.e., a registrar designated in a city, or town. That provision states that:

"For any search of the files and records conducted for authorized genealogical or research purposes, the commissioner or any person authorized by him shall be entitled to, and the applicant shall pay, a fee of ten dollars for each hour or fractional part of an hour of time for search, together with a fee of one dollar for each uncertified copy or abstract of such records requested by the applicant or for a certification that a search discloses no record."

Further, the Commissioner of Health has promulgated "Administrative Rules and Regulations" pertaining to genealogical research indicating that birth records need not be disclosed unless the subject of the birth record is known to have been deceased prior to 1924; death records need not be disclosed regarding deaths occurring after 1949. The summary also includes a restriction regarding the disclosure of marriage records. However, in an opinion rendered by this office with which the Department of Health has agreed, it was advised that basic information contained in marriage records, such as the names of the parties, the dates of a marriage or marriage application, the duration of the marriage and the municipality of residence of licensees should be made available to any person, unless a request is made for commercial or fund-raising purposes. More intimate information would only be disclosed upon a showing of a "proper purpose."

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Town Clerk