September 9, 1998



Hon. Joseph A. Provoncha
Essex County Clerk
Essex County Government Center
Elizabethtown, NY 12932

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, unless otherwise indicated.

Dear Mr. Provoncha:

I have received your letter of September 4 in which you raised questions concerning
the right to copy records under the Freedom of Information Law.

The initial issue involves requests by individuals who are "searching out their ‘roots'."
You indicated that your office maintains what you characterized as "Naturalization Books"
and that a representative from the federal government specified that the contents of those
books can be inspected, but that they cannot be copied. The notice attached to your letter
states in relevant part that:

"Clerks of the Court are prohibited by law from making and
issuing certifications of a naturalization record or any part
thereof, except upon order of the Court. There is no
prohibition against furnishing information orally from
naturalization records, without Court Order."

In order to obtain additional information regarding the federal law that would govern, I
contacted the FOI/Privacy Unit of the Immigration and Naturalization Service on your behalf.
I was informed that the prohibition against copying involves the preparation of "certifications"
of naturalization records that can be used to prove citizenship. I was also informed that there
is nothing in federal law that would prohibit a municipal clerk from providing a photocopy
of the kind of records to which you referred. Consequently, I believe that, on request, you
would have the authority to prepare a photocopy of the contents of Naturalization Books.

The second issue involves the recreation of the content of old deed books. Some of
those books are fragile, and although you permit individuals to inspect their contents, you do
not permit them to reproduce the contents by means of a copy machine. In short, you wrote
that your policy is "due to the fragile nature of the books and the fact that with a spine broken
we could lose old deeds." You asked whether the Freedom of Information Law requires that
a deed must be copied, on request, on a copying machine, or whether an alternative method
is acceptable.

From my perspective, while there is an obligation to comply with the Freedom of
Information Law, there is also an obligation imposed upon local government officials to
preserve and maintain the custody of their records. Specifically, subdivision (1) of §57.25 of
the Arts and Cultural Affairs Law states in relevant part that:

"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..."

In my opinion, although an agency ordinarily would be required to photocopy a paper
record on request, under the circumstances that you described in which photocopying could
destroy the record, you would have the authority to limit the ability to copy to the alternatives
that you described.

I hope that I have been of assistance. Should any further questions arise, please feel
free to contact me.



Robert J. Freeman
Executive Director