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August 20, 1993

 

 

Mr. William G. Farrar
6 Birchwood Court, Apt. 4N
Mineola, NY 11501

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 Mr. Farrar:

I have received your letter of August 16 concerning access to
records pertaining to the performance of marriages by the Mayor of
the Village of Mineola.

Pursuant to §11 of the Domestic Relations Law, a mayor of a
village may solemnize marriages. Although you wrote that the Mayor
may retain fees charged for so doing, there is no reference in that
statute of which I am aware concerning fees that may be charged.
However, §11-c of the Domestic Relations Law authorizes the
governing body of a municipality to appoint one or more "marriage
officers". Subdivision (3) of §11-c states that:

"A marriage officer may receive a salary or
wage in an amount to be determined by the
governing body of the municipality which
appoints him or her. In the event that a
marriage officer receives a salary or wage, he
or she shall not receive any remuneration or
consideration from any other source for
performing his or her duties. In the event
that a marriage officer does not receive a
salary or wage, he or she may accept and keep
up to seventy-five dollars for each marriage
at which he or she officiates, paid by or on
behalf of the persons married."

In conjunction with the foregoing, you have sought an advisory
opinion concerning whether you are entitled to obtain records
indicating the number of marriages performed by the Mayor, the
amounts he earned for so doing, and whether such records should be
in the custody of the Village Clerk.

In this regard, I offer the following comments.

First, I point out that the Freedom of Information Law
pertains to existing records, and that §89(3) of the Law states in
part that an agency or agency officials need not create a record in
response to a request. Therefore, insofar as the information in
question does not exist in the form of a record or records, the
Freedom of Information Law, in my view, would be inapplicable.

Second, irrespective of where any such records may be kept,
they are kept due to and in the performance of the Mayor's official
duties and in his capacity as Mayor or marriage officer.
Consequently, I believe that any such records would fall within the
scope of the Freedom of Information Law. It is emphasized that the
Freedom of Information Law pertains to agency records and that
§86(4) of the Law defines the term "record" expansively 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 a case in which an agency claimed, in essence, that it
could choose which documents it considered to be "records" for
purposes of the Freedom of Information Law, the state's highest
court rejected that claim. As stated by the Court of Appeals:

"...respondents' construction -- permitting an
agency to engage in a unilateral prescreening
of those documents which it deems to be
outside the scope of FOIL -- would be
inconsistent with the process set forth in the
statute. In enacting FOIL, the Legislature
devised a detailed system to insure that
although FOIL's scope is broadly defined to
include all governmental records, there is a
means by which an agency may properly withhold
from disclosure records found to be exempt
(see, Public Officers Law §87[2]; §89[2],[3].
Thus, FOIL provides that a request for access
may be denied by an agency in writing pursuant
to Public Officers Law §89(3) to prevent an
unwarranted invasion of privacy (see, Public
Officers Law §89[2]) or for one of the other
enumerated reasons for exemption (see, Public
Officers Law §87[2]). A party seeking
disclosure may challenge the agency's
assertion of an exemption by appealing within
the agency pursuant to Public Officers Law
§89(4)(a). In the event that the denial of
access is upheld on the internal appeal, the
statute specifically authorizes a proceeding
to obtain judicial review pursuant to CPLR
article 78 (see, Public Officers Law
§89[4][b]). Respondents' construction, if
followed, would allow an agency to bypass this
statutory process. An agency could simply
remove documents which, in its opinion, were
not within the scope of the FOIL, thereby
obviating the need to articulate a specific
exemption and avoiding review of its action.
Thus, respondents' construction would render
much of the statutory exemption and review
procedure ineffective; to adopt this
construction would be contrary to the accepted
principle that a statute should be interpreted
so as to give effect to all of its
provisions...

"...as a practical matter, the procedure
permitting an unreviewable prescreening of
documents -- which respondents urge us to
engraft on the statute -- could be used by an
uncooperative and obdurate public official or
agency to block an entirely legitimate FOIL
request. There would be no way to prevent a
custodian of records from removing a public
record from FOIL's reach by simply labeling it
'purely private'. Such a construction, which
could thwart the entire objective of FOIL by
creating an easy means of avoiding compliance,
should be rejected" [Capital Newspapers v.
Whalen, 69 NY 2d 246, 253-254 (1987)].

Again, a marriage could not be performed by the person in question
except in his capacity as a government official acting in the
performance of his duties as mayor or perhaps marriage officer.
That being so, it is my opinion that records involving the
performance of those duties are subject to rights conferred by the
Freedom of Information Law.

Third, as a general matter, the Freedom of Information Law is
based upon a presumption of access. Stated differently, all
records of an agency are available, except to the extent that
records or portions thereof fall within one or more grounds for
denial appearing in §87(2)(a) through (i) of the Law. In my view,
records reflective of the number of marriages performed and payment
made to the Mayor in his governmental capacity would be available.
In short, the grounds for denial are limited, and none in my
opinion could properly be asserted to withhold any such records.

Lastly, although the Freedom of Information Law does not deal
with the location where records should be kept, as you indicated,
the Village Law specifies that the village clerk is the custodian
of village records. Moreover, statutes other than Freedom of
Information Law provide direction concerning the custody, security,
retention and disposal of records. For instance, §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...

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
retention periods..."

As such, a local officer, such a mayor, 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.

I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Mayor, Village of Mineola