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 FOIL-AO-15169

February 17, 2005

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 correspondence, which focuses on the status of historical papers and photographs maintained by the Village of Cambridge in relation to the Freedom of Information Law.

In short, from my perspective, the materials at issue fall within the coverage of that statute. In this regard, I offer the following comments.

First, the Freedom of Information Law includes all records of an agency, such as a village, within its scope, 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".

The Court of Appeals, the state’s highest court, 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 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)].

In short, that the materials are in the physical custody of the Village in my opinion brings them within the scope of the Freedom of Information Law, irrespective of their function, origin or authorship.

Second, as a general matter, records accessible under the Freedom of Information Law must be made available to any person for inspection and copying [see §87(2)]. If, due to their age or condition, handling the records would likely result in damage or perhaps 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 that fragile or delicate records 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 records 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.

Lastly, the Freedom of Information Law does not address issues involving records management. Article 57-A of the Arts and Cultural Affairs Law, however, 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."

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...

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..."

Based on the foregoing, local officials must "have custody" and "adequately protect" records in their custody.

In an effort to enhance understanding of and compliance with law, copies of this response will be forwarded to Village officials. I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Board of Trustees
Linda M. Record, Clerk