June 6, 1994



Hon. Deborah A. Marek
P.O. Box 400
Hagaman, NY 12086

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.

Dear Councilwoman Marek:

I have received your letter of May 5. In your capacity as a
member of the Amsterdam Town Board, you have sought an advisory
opinion concerning a "flagrant disregard of public access to

Specifically, you wrote that a variety of communications sent
to the Town Supervisor, such as "official letters" from state
agencies, from firms and others, i.e., the County Chamber of
Commerce, are retained by the Supervisor "and are not given to the
Town Clerk to record, copy or keep on file as official public
documents." Moreover, you indicated that the materials are not
made available to other Board members in a timely manner. It is
your contention that the failure to disclose the records precludes
you and other board members from performing your duties

Some aspects of the issues raised relate tangentially to the
Freedom of Information Law; others in my view are directly
pertinent to the implementation of that statute. In this regard,
I offer the following comments.

First, irrespective of where records may be kept, they are
kept due to and in the performance of the Supervisor's official
duties and in his capacity as Supervisor. Consequently, I believe
that any such records would fall within the scope of the Freedom of
Information Law. It is emphasized that the Freedom of Information
Law pertains to agency records and that §86(4) of the Law defines
the term "record" expansively 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."

In a case in which an agency contended, in essence, that it
could choose which documents it considered to be "records" for
purposes of the Freedom of Information Law, the state's highest
court rejected that claim. As stated by the Court of Appeals:

"...respondents' construction -- permitting an
agency to engage in a unilateral prescreening
of those documents which it deems to be
outside the scope of FOIL -- would be
inconsistent with the process set forth in the
statute. In enacting FOIL, the Legislature
devised a detailed system to insure that
although FOIL's scope is broadly defined to
include all governmental records, there is a
means by which an agency may properly withhold
from disclosure records found to be exempt
(see, Public Officers Law §87[2]; §89[2],[3].
Thus, FOIL provides that a request for access
may be denied by an agency in writing pursuant
to Public Officers Law §89(3) to prevent an
unwarranted invasion of privacy (see, Public
Officers Law §89[2]) or for one of the other
enumerated reasons for exemption (see, Public
Officers Law §87[2]). A party seeking
disclosure may challenge the agency's
assertion of an exemption by appealing within
the agency pursuant to Public Officers Law
§89(4)(a). In the event that the denial of
access is upheld on the internal appeal, the
statute specifically authorizes a proceeding
to obtain judicial review pursuant to CPLR
article 78 (see, Public Officers Law
§89[4][b]). Respondents' construction, if
followed, would allow an agency to bypass this
statutory process. An agency could simply
remove documents which, in its opinion, were
not within the scope of the FOIL, thereby
obviating the need to articulate a specific
exemption and avoiding review of its action.
Thus, respondents' construction would render
much of the statutory exemption and review
procedure ineffective; to adopt this
construction would be contrary to the accepted
principle that a statute should be interpreted
so as to give effect to all of its

"...as a practical matter, the procedure
permitting an unreviewable prescreening of
documents -- which respondents urge us to
engraft on the statute -- could be used by an
uncooperative and obdurate public official or
agency to block an entirely legitimate FOIL
request. There would be no way to prevent a
custodian of records from removing a public
record from FOIL's reach by simply labeling it
'purely private'. Such a construction, which
could thwart the entire objective of FOIL by
creating an easy means of avoiding compliance,
should be rejected" [Capital Newspapers v.
Whalen, 69 NY 2d 246, 253-254 (1987)].

Again, the records would not come into the possession of the
Supervisor except in his capacity as a government official acting
in the performance of his duties as Supervisor. That being so, it
is my opinion that records involving the performance of those
duties are subject to rights conferred by the Freedom of
Information Law.

Similarly, the "Local Government Records Law", Article 57-A of
the Arts and Cultural Affairs Law, deals with the management,
custody, retention and disposal of records by local governments.
For purposes of those provisions, §57.17(4) of the Arts and
Cultural Affairs Law defines "record" to mean:

"...any book, paper, map, photograph, or other
information-recording device, regardless of
physical form or characteristic, that is made,
produced, executed, or received by any local
government or officer thereof pursuant to law
or in connection with the transaction of
public business. Record as used herein shall
not be deemed to include library materials,
extra copies of documents created only for
convenience of reference, and stocks of

As in the case of the Freedom of Information Law, I believe that
the materials at issue would constitute a "record".

Further, with respect to the retention and disposal of
records, §57.25 of the Arts and Cultural Affairs Law states in
relevant part that:

"1. 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

Second, while the Supervisor may have physical possession of
the records in question, I do not believe that he has legal custody
of them. Section 30 of the Town Law specifies that the town clerk
is the custodian of town records. Consistent with that provision
is §57.19 of the Arts and Cultural Affairs Law, which states in
part that a town clerk is the "records management officer" for a

Third, the failure to share the records or to inform the clerk
of their existence may effectively preclude the clerk from carrying
out her duties as records management officer, or if she or someone
else is so designated as records access officer for purposes of
responding to requests under the Freedom of Information Law. In
short, if the records access officer does not know the existence or
location of Town records, that person may not have the ability to
grant or deny access to records in a manner consistent with the
requirements of the Freedom of Information Law. The same may be so
in the case of yourself as a member of the Town Board. Unless the
records at issue are shared with you and other Board members, you
may be unable to perform your duties effectively.

Lastly, the Supervisor is but one of five members of the Town
Board. I believe that the Town Board, pursuant to §63 of the Town
Law, could adopt rules and procedures concerning the issues that
you raised.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director