April 11, 2006
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.
As you are aware, I have received your correspondence concerning repeated requests and appeals by a resident of the Town of Esopus, Ms. Susan Boice Wicks, for "Esopus History Scrapbooks."
Ms. Wick wrote to this office last year and indicated that the scrapbooks were created by the Town Historian and maintained "at an offsite storage location" for the Town. Based on her rendition of the facts, it was advised that the scrapbooks were Town records subject to rights of access conferred by the Freedom of Information Law. It appears, however, that her understanding of the matter is inaccurate, for you wrote that the scrapbooks "are owned by the Klyne Esopus Museum" and are neither in the legal custody nor the possession of the Town.
Among the items that you enclosed is a letter addressed to you by the President of the Klyne Esopus Museum, who wrote that:
"On information and belief, the Town of Esopus donated these scrapbooks to the Klyne Esopus Historical Society Museum completely and permanently to be part of the Museum’s collection. We are not merely an ‘off-site storage location’ but rather the owners of these scrapbooks.
"Further, it is standard museum practice not to accept items on a long term basis when they will not be a part of the museum’s collection.
"With this in mind, interested individuals may review the scrapbooks during our regularly scheduled business hours by appointment, as the books are secured."
In consideration of the foregoing, it appears that the scrapbooks might once have been in the possession of the Town, but that the Town relinquished custody of the scrapbooks to the Museum. If that is so, the scrapbooks would no longer constitute Town records, nor would they be subject to the Freedom of Information Law; rather, as indicated by the President of the Museum, they are now the property of the Museum.
I point out that most government records are not required to be kept permanently. Pursuant to §57.25 of the Arts and Cultural Affairs Law, the Commissioner of Education is authorized to develop "records retention and disposition schedules establishing minimum legal retention periods" for the various records maintained by local governments. The length of a retention period generally relates to the significance of the records. Minutes of meetings of town boards, for example, must be kept permanently; other records may be discarded or destroyed in lesser periods of time, and some may be destroyed or disposed of immediately. In the context of this situation, once the minimum retention period was reached, the Town could legally have destroyed or disposed of the scrapbooks. Instead, however, it appears that the scrapbooks were validly and legally donated to the Museum. Once that occurred, the scrapbooks were no longer Town records that fell within the scope of the Freedom of Information Law, but rather became the property of the new owner and beyond the Town’s custody or control.
Lastly, the Klyne Esopus Museum is not governmental entity and, therefore, is not required to give effect to the Freedom of Information Law. Nevertheless, as indicated by the President, the scrapbooks may be reviewed by members of the public by appointment. That being so, it is difficult to understand the reason for Ms. Wick’s repeated requests to the Town to review them. In an effort to clarify her understanding of the matter, a copy of this response will be sent to her.
I hope that I have been of assistance.
Robert J. Freeman
cc: Susan Boice Wick