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 FOIL-AO-14894

September 13, 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 information presented in your correspondence.

Dear

As you are aware, I have received your letter in which you raised a series of questions relating to access to records of the Village of Wappingers.

If you request the "zoning file" pertaining to the Mayor and receive no response, you wrote that you "presume that [you] can appeal." However, if the appeal is made to the Mayor, you asked what your "options" might be.

In this regard, the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3) of the Freedom of Information Law states in part that:

"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date when such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, or if an agency delays responding for an unreasonable time after it acknowledges that a request has been received, a request may, in my opinion, be considered to have been constructively denied. In such a circumstance, I believe that the denial may be appealed in accordance with §89(4)(a) of the Freedom of Information Law. That provision states in relevant part that:

"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."

In addition, it has been held that when an appeal is made but a determination is not rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of Information Law, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].

If the Mayor has been designated by the Board of Trustees to determine appeals, I believe that you would have the right to appeal to the Mayor. Irrespective of the nature or subject of the request, I believe that the Mayor would have an obligation to respond in a manner consistent with law.

Your remaining questions involve custody and control of records, as well as access to records by Village officers and employees. Here I note initially that the Freedom of Information Law does not deal directly the right of a mayor or other village officials to gain access to village records. I am unaware of any statute that deals specifically with requests by or disclosures to members of village boards of trustees or other village officials or any unique authority that those officials enjoy, individually, concerning their capacity to obtain copies of village records. However, in my opinion, the records are the property of the Village rather than a mayor, even though the mayor may be the chief executive officer.

For purposes of the Freedom of Information Law, the term "record" is defined in §86(4) of that statute 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."

Additionally, the "Local Government Records Law", Article 57-A of the Arts and Cultural Affairs Law, deals with the management, custody, retention and disposal of records by local governments. For purposes of those provisions, §57.17(4) of the Arts and Cultural Affairs Law defines "record" to mean:

"...any book, paper, map, photograph, or other information-recording device, regardless of physical form or characteristic, that is made, produced, executed, or received by any local government or officer thereof pursuant to law or in connection with the transaction of public business. Record as used herein shall not be deemed to include library materials, extra copies of documents created only for convenience of reference, and stocks of publications."

Based on both provisions quoted above, the records in question are the property of the Village; I do not believe that a mayor or other official may treat them as he or she see fit.

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..."

As such, a local officer must in my view "adequately protect" village records. Further, §57.19 of the Arts and Cultural Affairs Law specifies that the village clerk is the records management officer in a village.

Second, in my view, the Freedom of Information Law is intended to enable the public to request and obtain accessible records. 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 board rule or policy to the contrary, I believe that a mayor or member or other official should not generally be required to resort to the Freedom of Information Law in order to seek or obtain records.

Viewing the matter from a more technical perspective, one of the functions of a public body, such as a village board of trustees, involves acting collectively, as an entity. A board of trustees, 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). In my view, in most instances, a board, including a mayor, 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 such a case, a member seeking records could presumably be treated in the same manner as the public generally.

In short, village records are not the property of the mayor, and I do not believe that a mayor, when that person is not acting in the performance of his or her official duties, has the right to obtain or take custody or control of all village records. Particularly in the case of personnel files, there may be a variety of information which if disclosed would constitute "an unwarranted invasion of personal privacy" [see Freedom of Information Law, §§87(2)(b) and 89(2)]. Social security numbers, medical information, names of beneficiaries for insurance purposes, unsubstantiated complaints and similar records could in my opinion be withheld from the public based on considerations of privacy. While some of those items might in some instances be properly reviewed by a mayor or the board of trustees, again, such disclosures would presumably be made in conjunction with the performance of their official duties, not based on personal interest or curiosity.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Mayor
Board of Trustees