April 21, 1997


David P. Marinucci, Esq.
Village of Colonie
Village Hall
2 Thunder Road
Albany, NY 12205

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. Marinucci:

I have received your letter of April 3. In your capacity as attorney for the Village of Colonie, you wrote that a request has been made for a copy of a life insurance policy concerning a former elected official. You indicated that the Village does not and has never maintained the "record or even a copy of such insurance policy." You have asked whether the Village is required to obtain the record in question from another source.

From my perspective, it is unlikely that the Village would be required to do so.

As you may be aware, the Freedom of Information Law pertains to agency records. Section 86(4) of the statute defines the term "record" 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."

Based on the foregoing, if records are maintained by an agency or are kept, held, filed or produced for an agency, I believe that they fall within the coverage of the statute, even though they may not be in the physical possession of an agency.

If my understanding of the matter is accurate, the insurance policy itself, which never came into the possession of the Village, would not be kept for the Village, but rather for the policy holder. In a case which may be in some ways analogous, a request was made to an industrial development agency for records concerning a project that it had funded that were maintained by a bank. The industrial development agency did not have possession of the records, and it was determined that the bank in possession of the records was not a "repository" for the industrial development agency's records. The Court found that the bank was not the agent for the agency and that there was no statutory or contractual obligation on the part of the bank to maintain records for the agency. As such, it was determined that the records were those of a private agency, not an agency, and that they were held for the beneficiaries rather than a governmental entity [see United Food and Commercial Workers District Union, Local One v. City of Schenectady, 204 AD2d 887 (1994)].

Again, if my understanding of the facts is correct, it does not appear that records sought would be subject to the Freedom of Information Law or that the Village would be required to obtain them on behalf of an applicant.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director