FOIL AO 19756

October 7, 2019

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.


I am writing in response to your request for an advisory opinion regarding an agency’s obligation to maintain a reasonably detailed subject matter list pursuant to the Freedom of Information Law (FOIL).  Specifically, you question whether each department within a County is required to maintain a distinct subject matter list and whether the adoption of the County Records Retention and Disposition Schedule (CO-2) established by the New York State Archives, as the County’s subject matter list is sufficient to comply with law. 

By way of background, FOIL pertains to access to agency records and the law defines the term “agency” to mean:

    “…any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof…” (emphasis is mine)

Section 66(1) of General Construction Law defines the term “public corporation” to include:

    “a municipal corporation, a district corporation, or a public benefit corporation.” (emphasis is mine)

Finally, the term “municipal corporation” is defined in §66(2) of General Construction Law to include:

    “a county, city, town, village and school district.” (emphasis is mine)

A “county,” such as Putnam County, is a “public corporation” and, as such, is an “agency” as that term is defined by FOIL. 

Section 87(3)(c) requires that each agency: “shall maintain...a reasonably detailed current list by subject matter of all records in the possession of the agency, whether or not available under this article.”  The “subject matter list” need not consist of an index or list of every record maintained by an agency; rather, it must consist of a categorization of the kinds of records maintained by an agency.  That provision is applicable to all agencies, state and local, and the Committee on Open Government has repeatedly opined that entities of local government, such as the County, adopt or use as a guide the schedules developed by the State Archives, pursuant to the authority granted to the Commissioner of the New York State Department of Education under §57.25 of Arts and Cultural Affairs Law, that indicate minimum periods of retention of records.  The retention schedules are more detailed than a subject matter list must be.  Through the review of the retention schedule applicable to counties, for example, the “CO-2," an individual can learn of the kinds of records typically maintained by all counties and the period of time in which records must be retained.

Since the Putnam County is an “agency” as that term is defined by FOIL, it is logical for it to adopt a single subject matter list for all of its departments, boards, bureaus, divisions, commissions, committees, councils, or offices.  In our view, FOIL does not impose an obligation on each smaller “agency” to prepare a subject matter list, when its larger umbrella agency has adopted one on its behalf.  For example, as you are aware, the New York State, Department of State has prepared a reasonably detailed subject matter list which includes the records maintained by the Committee on Open Government, a committee housed within the Department of State. 

In your request for an advisory opinion, you argue that the types of records required to be included in the FOIL subject matter list are significantly different from those required to be included in the records retention and disposition schedule, and as such, the County should not be permitted to adopt the retention schedule as its subject matter list.  On page 15 of your letter, you state that:

    “Schedule CO-2 is not a comprehensive schedule of “Subject Matter Records” that list all the categories of records that either a NYS County’s RMO needs to maintain in order to be able to manage a NY County’s non-current, archived records pursuant to NYS’s Record Archive Laws and Regulations, or that a NYS Agency’s Record Access/FOIL Officer (or department head) needs to create and maintain in order to be able to manage and provide access to a NY agency’s current, day-to-day, operational, yet-to-be-archived records pursuant to NYS’s FOIL Laws and Regulations.” (emphasis is yours)

We disagree.  Section 57.25 of Arts and Cultural Affairs Law states:

    “It shall be the responsibility of very 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…

    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 records retention and disposition schedules establishing minimum legal retention periods.  The issuance of such schedules  shall  constitute  formal consent by the commissioner of education to the disposition of records that have been maintained in excess of the retention periods set forth in the schedules.”

As such, it is clear that the record retention and disposition schedule is intended to address all records needed to “adequately document the transaction of public business and the services and programs for which” the County is responsible. 

You also contend in your letter that the CO-2 “even says that it is not a comprehensive schedule of ‘Subject Matter Records” (emphasis is yours). In my view, this is not an accurate representation of what the CO-2 actually says.  The language from page “x” of the schedule states:

    “This Schedule covers the vast majority of all records of counties. For any record not listed, the Records Management Officer, or the custodian of the record, should contact the State Archives to determine if it is indeed covered by this Schedule and if a legal minimum retention period has been established. If not, the State Archives will consult with appropriate state and local officials and users of local government records and advise the local government on the disposition of the records. If the record is not covered by an item on this Schedule, it must be retained until a revised edition of or addendum to Schedule CO-2 is issued containing an item covering the record in question and providing a minimum legal retention period for it.”

In our view, a schedule that addresses “the vast majority of all records of counties,” is more detailed than what is required by the FOIL subject matter list, and in our opinion, is more than sufficient to comply with law.

We agree that if the record retention and disposition has been adopted as the agency’s reasonably detailed subject matter list, the schedule should be reviewed annually to comply with the statutory requirement that “[e]ach agency shall update its subject matter list annually, and the date of the most recent update shall be conspicuously indicated on the list.”

I hope this information proves useful.



Kristin O’Neill
Assistant Director


cc:        MaryEllen Odell, County Executive