May 24, 2004

 

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, unless otherwise indicated.

Dear :

As you are aware, I have received your letter concerning requests for records made to the Town of Schroeppel. In short, even though it is your belief that certain records exist and are maintained by the Town, you were informed that the records sought were not maintained by certain offices with the Town. Since the Town Clerk is the custodian of Town records and serves as both the records management officer for purposes of the Local Government Records Law and records access officer relative to the Freedom of Information Law, it appears to be your view that you are "entitled to a denial" in writing from the Clerk, rather than from a person who is not the records management or records access officer.

In this regard, the regulations promulgated by the Committee on Open Government (21 NYCRR Part 1401) state that the records access officer has the duty of "coordinating" an agency’s response to requests; the regulations do not require that the records access officer decide what may be available or deniable. Similarly, neither the Freedom of Information Law nor the Committee’s regulations specifies who should prepare the certification envisioned in §89(3) of the Freedom of Information Law. The regulations, in fact, provide that the records access officer "is responsible for assuring that agency personnel....Upon failure to locate records, certify that: (i) the agency is not the custodian for such records; or (ii) the records of which the agency is a custodian cannot be found after diligent search" [§1401.2(b)(6)]. It is also noted that the Court of Appeals, the state’s highest court, has held that a certification made under §89(3) need not be prepared specifically by either the person who made the search or by an agency’s records access officer [see Rattley v. New York City Police Department, 96 NY2d 873 (2001)].

Section 89(3) requires that an "entity", such as a town, shall, upon request for a record that cannot be found, "certify that it does not have possession of such record or that such record cannot be found after diligent search." I point out that the Town sent a copy of a response to you that includes a certification by the Clerk indicating that various units within the town were not able to supply the records that you requested. If they are the only units within Town government that would maintain the records of your interest, the certification would appear to be proper. However, if there is a possibility or likelihood that the records may be maintained elsewhere, the certification in my view may be inadequate.

Lastly, since you referred to them, §89(8) of the Freedom of Information Law and §240.35 of the Penal Law concern the "unlawful prevention of public access to records. The latter states that:

"A person is guilty of unlawful prevention of public access to records when, with intent to prevent the public inspection of a record pursuant to article six of the public officers law, he willfully conceals or destroys any such record."

From my perspective, the preceding may be applicable in two circumstances: first, when an agency employee receives a request for a record and indicates that the agency does not maintain the record even though he or she knows that the agency does maintain the record; or second, when an agency employee destroys a record following a request for that record in order to prevent public disclosure of the record. I do not believe that §240.65 applies when an agency denies access to a record, even though the basis for the denial may be inappropriate or erroneous, or when an agency cannot locate a record that must be maintained.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Hon. Margaret A. Cole
Town Board