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March 24, 1994

 

 

Ms. Robin K. Patterson
431 Maple Avenue
Hagaman, NY 12086

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. Patterson:

As you are aware, I have received your letter of January 31
and the materials attached to it. Please note that your
correspondence did not reach this office until February 15.

According to your letter, having read a newspaper article
indicating that the Town of Amsterdam's consulting bookkeeper
submitted a three page letter of resignation and that the
Supervisor refused to disclose that document, you requested it
under the Freedom of Information Law on the following day.
Although you received no response, reference to the request was
made in a news article approximately a week later. The article
states that "Town officials returned what they characterized as a
'personal' resignation letter from a former adviser and received a
more acceptable replacement this week." The "more acceptable
replacement" was a one page letter that has been disclosed. The
article also indicates that the Supervisor does not have a copy of
the original letter and said that "it was a personal letter that
was not written to the town, but to one town official."

You asked whether Town officials are "going to be allowed to
censor all documents that are submitted to the Town in the future."
In this regard, I offer the following comments.

First, I believe that the three page letter of resignation
constituted a "record" subject to 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)].

The letter of resignation was given to Town officials in their
capacities as Town officials. To suggest that it is not a record
subject to the Freedom of Information Law would in my opinion
clearly conflict with the interpretation of that statute by the
State's highest court.

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."

As in the case of the Freedom of Information Law, I believe that
the letter of resignation would constitute a "record".

Further, with respect to the retention and disposal of
records, §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, 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.

Third, while the Supervisor may have had physical possession
of the record in question, I do not believe that he had the
authority to return it. Again, the letter in my view constituted
a "record" for purposes of both the Freedom of Information Law and
the Arts and Cultural Affairs Law. Moreover, §30 of the Town Law
specifies that the town clerk is the custodian of 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. In that role, the clerk "shall
coordinate legal disposition, including destruction of obsolete
records."

Lastly, while I am not suggesting that it would necessarily
apply, it is noted that §89(8) of the Freedom of Information Law
states that:

"Any person who, with intent to prevent public
inspection of a record pursuant to this
article, willfully conceals or destroys any
such record shall be guilty of a violation."

A related provision appears in §240.65 of the Penal Law.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: William Gryzb, Supervisor
Linda Bartone, Clerk