January 8, 1993


Ms. Sue Boice
Title Tree
P.O. Box 411
Hurley, NY 12443

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence, unless otherwise indicated.

Dear Ms. Boice:

I have received your letter of December 27 in which you sought an advisory opinion concerning access to records.

According to your letter, several months ago you requested town tax rolls from Ulster County that were prepared in the 19th century. The request was denied "on the grounds the records are sealed and too fragile for viewing." You were also informed that the records in question will likely be microfilmed in 1994.

In this regard, I offer the following comments.

First, the Freedom of Information Law is applicable to all agency records, and §86(4) of that 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 upon the foregoing, tax rolls maintained by an agency would in my view constitute "records" subject to the Freedom of Information Law, irrespective of their age.

Second, as a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in section 87(2)(a) through (i) of the Law. There appears to be no question that the records in question fall within the scope of public rights of access. Further, §87(2) of the Law states that accessible records should be made available for inspection and copying.

Third, there are also provisions of law that deal with the custody, preservation, retention and disposal of records. For example, §57.25 of the Arts and Cultural Affairs Law, which is part of the "Local Government Records Law", states in 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."

As such, local government officials have a responsibility to "protect" and ensure the "preservation of records of enduring value". Further, having spoken with a County official concerning your request, I was informed that handling of the records sought would cause their disintegration. Consequently, it is possible that a review of the records would be less than valuable to you, and that the records would be unusable in the future.

From my perspective, there is a conflict between laws in this instance. On the one hand, I believe that the records are accessible under the Freedom of Information Law; on the other hand, the County is obliged to preserve them, and acceding to your request would apparently be concomitant to their destruction. I cannot conjecture as to the response that might be rendered by a court in this unusual circumstance. However, it is possible that a review of more recent and usable records would suffice for your purposes. If that is so, it is suggested that you seek to review other records that may be equally valuable to you.

I regret that I cannot be of greater assistance. Should any further questions arise, please feel free to contact me.



Robert J. Freeman
Executive Director
cc: Director, Ulster County Real Property Tax Services