December 28, 1994
Mr. Barry M. Schreibman
510 Pine Bush Road
Stone Ridge, NY 12484
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, unless otherwise indicated.
Dear Mr. Schreibman:
I have received your letter of November 14, as well as materials relating to it.
By way of background, it is my understanding that you were the petitioner in a proceeding brought under the Freedom of Information Law against the Kripplebush-Lyonsville Fire Department, Inc. (KLFD), and that you prevailed. Because KLFD failed to comply with the judgment of the court, it was found to be in contempt. You have raised a question relating to the matter which was not and is not now being litigated. Specifically, your inquiry is as follows:
"Where a county agency provides a centralized emergency dispatch service for a volunteer fire company, which service includes creating and maintaining records of the fire company's emergency responses, and when but for this service the fire company would itself create and maintain these records, are the county records created 'by, with or for' the fire company within the meaning of Public Officers Law section 86 subd. 4?"
The KFLD has not prepared and does not possess the records that you are seeking. The Ulster County Communications Center apparently creates and maintains those records. When you asked the Director of the Center "whether the KLFD would have to create its Emergency Response Records if Central Dispatch did not exist," you wrote that he responded in the affirmative. He also informed you however, that Central Dispatch is not required to create emergency response records; rather, be referred to provisions that require that such records, once they exist, be retained for a certain period of time.
In good faith, it is noted that I received a letter from Paul L. Gruner, the attorney for KLFD. He confirmed that KLFD does not maintain the records at issue and questioned your contention that the existence of the records justifies the continuation and funding of KLFD.
In this regard, I offer the following comments.
First, I believe that the series of statutes referenced throughout the correspondence as the "State Records Management Act" is commonly known and cited as the "Local Government Records Law." The provisions of the Local Government Records Law are found in Article 57-A of the Arts and Cultural Affairs Law, §§57.13 to 57.39. To the best of my knowledge, those provisions do not require the preparation of particular records; rather, in general, they deal with records management and the orderly retention, preservation and disposal of records.
Second, the issue that you have presented is, in essence, whether the documents at issue constitute records of the KLFD. As you are aware, the Freedom of Information Law defines the term "record" broadly 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."
As I understand the facts, the KLFD did not prepare the records, does not maintain them now and has not arranged or engaged in any agreement with the County to have the County prepare or maintain the records on behalf of the KLFD. That being so, I do not believe that the documents could be characterized as KLFD records or that the KLFD would be obliged by the Freedom of Information Law to attempt to obtain or retrieve them on your behalf. As stated in a recent decision: "The law is well settled that a governmental agency need not disclose materials over which it did not have possession or control" (Farms First v. County of County of Saratoga, Supreme Court, Saratoga County, July 21, 1994). Similarly, in another case, it was held that "because SIDA [the City of Schenectady Industrial Development Agency] claimed that the requested documents were not in its possession, absent evidence that CNB [the Connecticut National Bank] was holding the documents for SIDA, dismissal of the petition against it was...warranted" [United Food and Commercial Workers District Union Local One v. City of Schenectady Industrial Development Agency, __AD 2d__, 612 NYS 2d 477, 479 (1994)].
In short, based on the facts, the language of the Freedom of Information Law, and its judicial interpretation, the documents in question are not in my view records of the KLFD. It is suggested that you seek the records from the appropriate County agency.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Paul L. Gruner