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October 1, 1996



Hon. Susan Briggs
Town Clerk
Town of Russell
Box 628
Russell, NY 13684

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.

Dear Ms. Briggs:

I have received your letter of September 20. In brief, you referred to a series of events focusing on the new Russell Town Supervisor and his actions, and you asked for guidance in an effort to enable you and other town officials to carry out your duties effectively and in a manner consistent with law.

In this regard, as you may be aware, the Committee on Open Government is authorized to provide advice concerning agency records and meetings of public bodies. Consequently, my comments will generally relate to issues pertaining to those subjects.

It is emphasized at the outset that the Supervisor is but one among five members of the Town Board. Although as Supervisor, he may have several specific duties or areas of authority (see e.g., Town Law, §29), he has one vote at Board meetings, and §63 of the Town Law states in part that "Every act, notion 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 short, the Board is the governing body of the Town.

Second, the Open Meetings Law provides direction concerning the contents of minutes and when they must be disclosed. Specifically, §106 of that statute provides that:

"1. Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.

2. Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.

3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session."

In addition and perhaps most importantly, §30(1) of the Town Law states in part that the town clerk "shall attend all meetings of the town board, act as clerk thereof, and keep a complete and accurate record of the proceedings of each meeting." Based upon the foregoing, the clerk, not the town supervisor, has the statutory responsibility to prepare minutes and ensure their accuracy. Further, the supervisor in my view, has no right, acting unilaterally, to change or correct minutes.

I point out that in an opinion issued by the State Comptroller, it was advised that when a member of a board requests that his or her statement be entered into the minutes, the board must determine, under its rules of procedure, whether the clerk should record the statement in writing, which would then be entered as part of the minutes (1980 Op.St.Comp. File #82-181).

Moreover, although as a matter of practice, policy or tradition, many public bodies approve minutes of their meetings, there is nothing in the Open Meetings Law or any other statute of which I am aware that requires that minutes be approved. Additionally, in another opinion of the State Comptroller, it was found that there is no statutory requirement that a town board approve minutes of a meeting, but that it was "advisable" that a motion to approve minutes be made after the members have had an opportunity to review the minutes (1954 Ops.St.Compt. File #6609).

In short, it is my view that you, in your position as clerk, have the responsibility and the authority to prepare minutes and to insure their accuracy. While the Supervisor may have other areas of authority, I do not believe that the alteration of minutes is among them.

With respect to records, §30 of the Town Law states that the town clerk: "Shall have the custody of all the records, books and papers of the town." Therefore, even though a person other than yourself may have physical possession of the records in question, as Town Clerk, I believe that you have legal custody of the records.

In a related vein, it is noted that §89(1)(b)(iii) of the Freedom of Information Law requires the Committee on Open Government to promulgate regulations concerning the procedural aspects of the Law (see 21 NYCRR Part 1401). In turn, §87(1)(a) of the Law states that:

"the governing body of each public corporation shall promulgate uniform rules and regulations for all agencies in such public corporation pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article, pertaining to the administration of this article."

In this instance, the governing body of a public corporation, the Town Board, is required to promulgate appropriate rules and regulations consistent with those adopted by the Committee on Open Government and with the Freedom of Information Law.

The initial responsibility to deal with requests is borne by an agency's records access officer, and the Committee's regulations provide direction concerning the designation and duties of a records access officer. Specifically, §1401.2 of the regulations provides in relevant part that:

"(a) The governing body of a public corporation and the head of an executive agency or governing body of other agencies shall be responsible for insuring compliance with the regulations herein, and shall designate one or more persons as records access officer by name or by specific job title and business address, who shall have the duty of coordinating agency response to public requests for access to records. The designation of one or more records access officers shall not be construed to prohibit officials who have in the past been authorized to make records or information available to the public from continuing to do so."

As such, the Town Board has the ability to designate "one or more persons as records access officer." Further, §14012(b) of the regulations describes the duties of a records access officer, including the duty to coordinate the agency's response to requests. If you have been designated records access officer, I believe that you have the authority to make initial determinations to grant or deny access to records in response to requests made under the Freedom of Information Law.

Lastly, and in a related area, 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.

With respect to the retention of records, §5725 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."

While a person other than you may have physical possession of records, I do not believe that that person has legal custody of them. As indicated earlier, §30 of the Town Law specifies that the town clerk is the custodian of town records. Consistent with that provision is §5719 of the Arts and Cultural Affairs Law, which states in part that a town clerk is the "records management officer" for a town.

A failure to share 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. In short, if the records access officer does not know of 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 or comply with other provisions of law.

I hope that I have been of assistance.


Robert J. Freeman
Executive Director


cc: Town Supervisor