February 25, 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 information presented in your correspondence.
I have received your letter in which you sought an opinion "on the issue of Cayuga County [Real Property Services] RPS providing copies of deeds to the public."
You wrote that deeds are "officially recorded and certified copies sold by the County Clerk’s Office..." Copies of deed records filed with the County Clerk are made available to other County agencies, as well as towns and cities. According to your letter, the Cayuga County Clerk "has recently asked all government agencies possessing Cayuga County NY deed records to direct the public to obtain all copies exclusively at their office" and "maintains they have the exclusive ownership of deeds after they are filed, and can...require the public to obtain any copy exclusively at their office." You contend, however, that "this violates [y]our obligation to make records of [y]our office available directly to the public..."
In this regard, the County Clerk’s claim of ownership is, in my view, inconsistent with law. From my perspective, "ownership" is irrelevant for purposes of the Freedom of Information Law. That statute includes all agency records within its coverage, irrespective of their authorship, origin or function. Specifically, §86(4) of FOIL defines the term "record" expansively to include:
"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."
Based on the definition, when deeds or any other documentary materials, regardless of their physical form (i.e., paper or electronic storage media), come into the possession of a government agency in New York, such as a difference county agency or a town, they constitute agency "records" that fall within the requirements of the Freedom of Information Law.
If an agency prepares a record and copies are transmitted by any means to one or more other agencies, any of those agencies in receipt of a FOIL request would be obliged to respond [see e.g., Muniz v. Roth, 620 NYS 700 (1994)]. Perhaps most significant for purposes of illustration is a decision rendered by the Court of Appeals, the state’s highest court, involving a request made to a state agency for copies of subpoenas issued by a court for that agency’s records. To put the matter in perspective, while the Freedom of Information Law includes all state and municipal agencies within its scope, the courts are excluded from the coverage of that law. That being so, the agency denied access, contending that court records in its possession were not covered by the Freedom of Information Law. In Newsday v. Empire State Development Corporation [98 NY2d 359 (2002)], the Court of Appeals unanimously disagreed, stating that the records were subject to the Freedom of Information Law, "irrespective of whether they are deemed to have been a mandate of a court and issued for a court." The Court found further that "ESDC, a state public corporation, is undeniably an agency under FOIL. It presently has physical possession of the subpoenas. Thus, in the hands of ESDC, the subpoenas constitute agency records: ‘information kept [or] held * * * by * * * agency [i.e., ESDC] * * * in any physical form whatsoever."
In like manner, although deeds or other records may be filed initially and officially with an office of a county clerk, once they come into the possession of another agency, they become records of that agency. Whether an agency in receipt of a request made pursuant to the Freedom of Information Law is the creator of a record or the initial location of filing or, on the other hand, a secondary custodian that received a copy of the original, the responsibility to honor the request is exactly the same.
One of the underlying issues concerning the controversy involves the ability to generate revenue through fees. Section 87(1)(b)(iii) of the Freedom of Information Law pertains to fees and states that an agency may charge up to twenty-five cents per photocopy up to nine by fourteen inches or the actual cost of reproducing other records (i.e., records that are larger, or computer tapes or disks, etc.), unless a different fee is prescribed by statute. County clerks charge fees pursuant to a series of statutes (see CPLR, §8019 et seq.) that exceed that those that can be assessed under the Freedom of Information Law. Nevertheless, when a copy of a record originally created by or filed with a county clerk is requested from a different agency, that agency must respond and may only charge the fees for copies consistent with the Freedom of Information Law.
Unless and until the State Legislature changes the law, which seems unlikely, the fees charged by towns and other agencies will remain as they have been for years, the responsibility to respond to a request for records will remain with any agency that has possession of the records, and "ownership" will have little significance for purposes of complying with the Freedom of Information Law
I hope that I have been of assistance.
Robert J. Freeman
cc: Cayuga County Clerk