April 20, 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 information presented in your correspondence.
I have received your letter in which you expressed concern relating to your ability to perform your duties as records access officer. You wrote that when a request is made under the Freedom of Information Law and you do not have physical possession of the records:
"...[you] have to go to other departments or the Supervisor to try to retrieve the information for the constituents. The Supervisor does not (or is willing) to make sure that I have the information that I need to respond to FOIL Requests."
You have sought guidance on the matter. From my perspective, several provisions of law are pertinent to the matter. In this regard, I offer the following comments.
First, §30(1) of the Town Law provides in relevant part that a town clerk "Shall have the custody of all the records, books and papers of the town." That being so, the clerk is the legal custodian of all town records, irrespective of where or by whom the records are kept.
Second, in a related vein, the Freedom of Information Law is expansive in its scope, for it pertains to all agency records and defines the term "record" in §86(4) 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."
In view of the foregoing, any record maintained by or for a town constitutes a town record that falls within the coverage of the Freedom of Information Law.
Third, with respect to the implementation of the Freedom of Information Law, §89(1) of that statute requires the Committee on Open Government to promulgate regulations concerning the procedural implementation of that statute (21 NYCRR Part 1401). In turn, §87(1) requires the governing body of a public corporation to adopt rules and regulations consistent those promulgated by the Committee and with the Freedom of Information Law. Further, §1401.2 of the regulations provides in relevant part that:
"(a) The governing body of a public corporation and the head of an executive agency or governing body of other agencies shall be responsible for insuring compliance with the regulations herein, and shall designate one or more persons as records access officer by name or by specific job title and business address, who shall have the duty of coordinating agency response to public requests for access officers shall not be construed to prohibit officials who have in the past been authorized to make records or information available to the public form continuing from doing so."
As such, the Town Board has the duty to promulgate rules and ensure compliance.
Section 1401.2 (b) of the regulations describes the duties of a records access officer and states in part that:
"The records access officer is responsible for assuring that agency personnel...
(4) upon locating the records, take one of the following actions:
(i) make records promptly available for inspection; or
(ii) deny access to the records in whole or in part and explain in writing the reasons therefor.
(5) Upon request for copies of records:
(i) make a copy available upon payment or offer to pay established fees, if any; or
(ii) permit the requester to copy those records..."
Based on provisions quoted above, the records access officer must "coordinate" an agency's response to requests, and it appears that you have been designated by the Town Board as records access officer. As part of that coordination, I believe that other Town officials and employees are required to cooperate with you as the records access officer in an effort to enable you to carry out your official duties.
Next, 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."
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..."
While others may have physical possession of town records, it is reiterated that §30(1) of the Town Law indicates that you are the legal custodian of all town records. Consistent with that provision is §57.19 of the Arts and Cultural Affairs Law, which states in part that a town clerk is the "records management officer" for a town.
A failure to share the records or to inform you, as Clerk, of their existence may effectively preclude you from carrying out your duties as records management officer, and as records access officer for purposes of responding to requests under the Freedom of Information Law. In short, if you do not know the existence or location of Town records, or cannot obtain them, you would lose the ability to grant or deny access to records in a manner consistent with the requirements of the Freedom of Information Law.
In an effort to enhance the members’ understanding of the provisions referenced in the preceding commentary, as well as your functions and duties as Town Clerk, a copy of this response will be sent to the Town Board.
I hope that I have been of assistance.
Robert J. Freeman
cc: Town Board