February 24, 1997
Mr. Norman H. Weissman
Brooklyn, NY 11215
Dear Mr. Weissman:
As you are aware, your letter of January 31 addressed to Attorney General Vacco has been forwarded to the Committee on Open Government. The Committee is authorized by the Freedom of Information Law to provide advice and opinions concerning that statute.
Based on your correspondence, you have attempted without success to obtain records concerning a particular realtor and whether that person was licensed in 1983. In response to a request that appears to have been made early in 1995, you were informed in a letter dated January 31, 1995 by the Division of Licensing Services of the Department of State that:
"REAL ESTATE RECORDS PRIOR TO 11/1/87 HAVE BEEN DESTROYED ACCORDING TO OUR SCHEDULED RATE OF DESTRUCTION. THEREFORE, WE ARE UNABLE TO COMPLY WITH YOUR REQUEST FOR INFORMATION ON MARY ANN BARON REALTY IN THE YEAR 1983."
In your letter to the Attorney General, you wrote that "it was illegal to destroy records once they were requested."
In this regard, it is true that it may be "illegal" to destroy records sought under the Freedom of Information Law after the records have been requested. Section 89(8) of that statute provides 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." However, as I understand the matter, any records falling within the scope of your request that might have existed would have been legally destroyed before your request was made or received by the Department of State.
I note that agencies cannot merely destroy records when they have the desire to do so or when they run out of storage space. On the contrary, retention and disposal of records are governed by law. Specifically, §57.05 of the Arts and Cultural Affairs Law provides that the Commissioner of Education is empowered:
"[t]o authorize the disposal or destruction of state records including books, papers, maps, photographs, microphotographs or other documentary materials made, acquired or received by any agency. At least forty days prior to the proposed disposal or destruction of such records, the commissioner of education shall deliver a list of the records to be disposed of or destroyed to the attorney general, the comptroller and the state agency that transferred such records. No state records listed therein shall be destroyed if within thirty days after receipt of such list the attorney general, comptroller, or the agency that transferred such records shall notify the commissioner that in his opinion such state records should not be destroyed."
In the context of your correspondence, it appears that the kinds of records in which you are interested would have been destroyed in accordance with a schedule established by the Commissioner of Education that permitted the disposal of those kinds of records after they existed for a particular period of time. If my assumptions are accurate, the destruction of any records would not have been illegal and would have been carried out in accordance with law.
Lastly, I point out that the Freedom of Information Law pertains to existing records. Section 89(3) of that statute provides in part that an agency is not required to prepare a record that is not maintained by the agency in response to a request. In short, if the record in question does not exist, the Freedom of Information Law would not apply.
I hope that the foregoing serves to enhance your understanding of the matter and that I have been of assistance.
Robert J. Freeman