May 26, 1993
Ms. Maureen Kendrick
3 Birch Street
Airmont, N.Y. 10952
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 Ms. Kendrick:
I have received your letter of May 4 in which you expressed
concern with respect to the "integrity of all of the municipal
records" of the Village of Airmont.
According to the correspondence attached to your letter, the
Village Clerk/Treasurer refused reappointment to that position on
April 13, and on April 15, "the Deputy Clerk left and the remaining
staff resigned." Consequently, you wrote that the "Village Hall
and its records of government was staffed by individuals with no
authorization from the Village Board," and that those individuals
"continue to have access to records." You added that the situation
is particularly disturbing because the Village "is presently
defending itself against a lawsuit that calls for its dissolution"
and that as the former Mayor, you are a defendant in the suit.
In this regard, it does not appear that the Freedom of
Information Law is clearly at issue, for the matter likely does not
involve requests for records made under that statute or disclosure
made in response to such requests. Nevertheless, statutes other
than Freedom of Information Law provide direction concerning the
custody, security, retention and disposal of records.
Specifically, §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
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
As such, local officers, such as members of the Village Board of
Trustees, must in my view "adequately protect" Village records.
Further, records cannot be destroyed without the consent of the
Commissioner of Education, and local officials cannot destroy or
dispose of records until the minimum period for the retention of
the records has been reached.
In addition, I point out that §805(1)(b) of the General
Municipal Law states that: "No municipal officer or employee
shall...disclose confidential information acquired by him in the
course of his official duties or use such information to further
his personal interests."
As indicated to you by phone, it is suggested that, under the
circumstances, you confer with your attorney, as well as the Board
I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.
Robert J. Freeman
cc: Board of Trustees