September 26, 1994
Mr. Harry C. Kuntzleman
124 South Main Street
Newark Valley, NY 13811
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 Mr. Kuntzleman:
As you are aware, I have received your letter of September 1. You raised a series of issues concerning voting by means of absentee ballot in the Newark Valley Central School District.
The initial issue pertains to a request for the names of those who constitute a board of registration. You were informed that no such board existed. In this regard, §2014 of the Education Law entitled "Registration of voters" states at the outset that: "In any union free school district, the board of education may upon its own motion provide for the personal registration of voters at school meetings or elections in such district as provided in this section." While §2014 refers to union free school districts, the School Law Book published by the New York State School Boards Association states that general references to the powers and duties of union free school districts "usually apply, through devolution, to all other school districts, with the exception of common school districts." Assuming that to be so in this instance and that the Board of Education has provided for the personal registration of voters pursuant to §2014, that provision requires the Board to "annually designate...four qualified voters...to constitute a board of registration for such district." When such a board has been designated, I believe that a record identifying the members must be disclosed and that minutes of a meeting of a board of education refer to the board action making such designation and include the names of the persons selected.
The second issue relates to a request for envelopes that include the postmarks of absentee ballots. You were informed that the envelopes were not retained. Sections 2018-a(9) and 2018-b(10) require the clerk of a school district to "transmit absentee voters' envelopes...to the inspectors of elections." Here I direct your attention to the "Local Government Records Law", Article 57-A of the Arts and Cultural Affairs Law, which 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."
With specific 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. It is suggested that you request to inspect the retention schedule applicable to school districts in an effort to ascertain the minimum period of time that the envelopes must be retained.
Lastly, you referred to a request for an agenda of what you characterized as "an expected Special Board meeting." The Superintendent wrote that the Board of Education did not conduct a meeting on the evening in question and that you were so informed at the time. If no agenda or minutes were prepared, in short, the Freedom of Information Law would not apply.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Dr. William D. Starkweather, Superintendent
Thomas Wieland, Records Access Officer