November 24, 2004
FROM: Robert J. Freeman, Executive Director
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.
I have received your letter in which you indicated that a member of the Town Board "would like our Town Attorney to review all FOIL requests before [you, the Town Clerk] release any information." You believe that would be unnecessary and sought my views.
First, in my opinion, an individual member of the Town Board does not have the authority to make policy or direct you to follow his "guidelines." Under the Freedom of Information Law, §87(1), the Town Board is responsible for implementation of the Freedom of Information Law.
Second, as you are aware, the regulations promulgated by the Committee on Open Government (21 NYCRR §1401.2) require that the Town Board designate at least one person as "records access officer." In the great majority of towns, the town clerk is the records access officer, and it is assumed that you have been designated as records access officer in the Town that you serve. If that is so, it is within your authority and responsibility to coordinate the Town’s response to requests for records. If you believe that it would be appropriate for the Town Attorney to review a request, or if you feel that it would be beneficial to consult with others before determining to grant or deny access to records, I believe that it would be within your authority to do so. However, I do not believe that you must seek review of all requests by the Town Attorney based upon the inclination of one member of the Town Board.
I hope that I have been of assistance.