May 3, 2016

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,
except as otherwise indicated.


We are in receipt of your inquiry regarding the manner in which the Village of Mamaroneck responded
to your Freedom of Information Law (FOIL) request for text messages received on a Village owned

You provided a copy of the Village’s appeal determination, wherein the appeals officer stated,
“[b]ased on the procedures of the Village, confirmed with the NYS COOG, text messages are not
records maintained by the village, and are therefore not subject to FOIL.” You asked us to help you
understand “why a txt (sic) message received by a Village official would not be a record.” While I
do not recall the specific conversation or e-mail exchange with the Village relating to this topic,
I believe there may have been a misunderstanding or misinterpretation of the advice offered by our

The scope of FOIL is expansive, for it encompasses all government agency records within its
coverage. Section 86(4) of that statute defines the term "record" expansively to include:

"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."

There are innumerable small units of local government, i.e., towns, villages and school districts,
wherein members of their governing bodies are not generally full time and do not work out of
government offices. On the contrary, often they communicate from their homes with each other, with
staff, and with their constituents using their personally owned computers and mobile telephones in
carrying out their governmental functions. That being so, this office has long advised that
electronic communications , such as e-mails or text messages that involve Village business, whether
stored on a government or a personal device, constitute “records” that fall within the coverage of
FOIL. Whether they must be disclosed, as in all other instances, would be dependent on the content
of the records.

With specific respect to text messages, in my experience, a government agency may be unable to
extract or retrieve those communications; often they are retrievable only by the carrier of the
services, a private company. If that is so, FOIL would not apply. In addition, I do not believe
an agency is required to allow the individual who requested to record to have access to a Village owned device in order to view an e-mail or text communication on the device.

You also ask whether you may “FOIL” any records between our office and the Village of Mamaroneck on the
subject of text messages as records. I have conducted a diligent search of the Committee’s written
communications and I am unable to locate any record of a communication between our office and the Village
of Mamaroneck on this subject. It is possible that the consultation occurred by telephone.

I hope that I have been of assistance.


Kristin O’Neill
Assistant Director

cc: Richard Slingerland, Village Manager