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FOIL-AO-16144

September 1, 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.

Dear

I have received your letter in which, as Town Clerk of the Town of Osceola, you requested an advisory opinion. In brief, you wrote that the new Town Supervisor has forbidden you from gaining access to various Town records. In this regard, I offer the following comments.

First, §30 of the Town Law entitled "Powers and duties of town clerk" states in subdivision (1) that the town clerk "Shall have the custody of all the records, books and papers of the town." That being so, although various records may come into the physical possession of the Town Supervisor, I believe that you as Town Clerk have legal custody of any such records.

Second, 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..."

To implement §57.25, §57.19 of the Arts and Cultural Affairs Law states that town clerk is the "records management officer" for a town.

A failure to share the records or to inform the clerk of their existence may effectively preclude the clerk from carrying out her duties as records management officer or as records access officer for purposes of responding to requests under the Freedom of Information Law. The records access officer, according to the regulations promulgated by the Committee on Open Government, has the duty of coordinating an agency’s response to requests (see 21 NYCRR §1401.2). In short, if the records access officer does not know the existence or location of Town records, that person may not have the ability to grant or deny access to records in a manner consistent with the requirements of the Freedom of Information Law.

There are other instances, too, in which the town clerk, by law, must have access to and custody of records. For instance, §119 of the Town Law entitled "Audit of claims and issuance of warrants" requires the town clerk to present claims to the town board, and after claims have been audited by the board, "the town clerk shall file the same in numerical order as a public record in his office and prepare an abstract of the claims..." In short, as town clerk, you have a need and a right to obtain various records to carry out your statutory duties.

Lastly, although the Town Supervisor may have certain areas of authority or responsibility, she is but one among five members of the Town Board. In my view, she is obliged to comply with rules and resolutions adopted by a majority of the Board, so long as such rules or resolutions are not inconsistent with law. I note that §64(3) of the Town Law states that the Town Board "Shall have the management, custody and control of all town lands, buildings and property of the town." Town property in my view clearly includes "records" as defined by both the Freedom of Information Law and the Arts and Cultural Affairs Law. Similarly, §63 of the Town Law provides that "Every act, motion or resolution shall require for its adoption the affirmative vote of a majority of all the members of the town board", and that "The board may determine the rules of its procedure."

In sum, I do not believe that the records that are the subject of your correspondence are the property of Supervisor or that she has the legal authority to exercise control over the records in the manner described in your letter.

In an effort to enhance compliance with and understanding of applicable law, a copy of this response will be sent to the Supervisor.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Supervisor, Town of Osceola