February 17, 1995



Mr. Daniel M. DiMatteo
Village Attorney
Village of Oakfield
37 Main Street
Oakfield, NY 14125

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. DiMatteo:

I have received your letters of January 19 and January 27, as well as a variety of related correspondence.

In your capacity as the Village Attorney for the Village of Oakfield, you have sought an advisory opinion concerning the "ownership" of records that have come into the possession of the Village. The records in question are quite old, and many of them had once been maintained by the Town of Oakfield. The Town has asked that the records be returned, and the Village so far has resisted. Although you requested an opinion from the Attorney General on the matter, that office declined to do so and recommended that you seek an opinion from the Committee on Open Government. The matter is not clearly within the advisory jurisdiction of this office, for there are statutes in addition to the Freedom of Information Law that may be relevant. Although some of my remarks will focus on the Freedom of Information Law, I do not believe that there is any clear legal response that can be given regarding the issue of ownership.

The correspondence indicates that the existence of the records was unknown until recently. In contending that the records originally maintained by the Town should be returned to the Town, the Town Attorney referred to the principle of comity, but he also wrote that Article 57-A of the Arts and Cultural Affairs Law, the "Local Government Records Law", does not directly address the issue. He referred, however, to §57.25(1) of the Arts and Cultural Affairs Law, which states in part that: "In towns, records no longer needed for the conduct of business of the office shall be transferred to the custody of the town clerk for their safekeeping and ultimate disposal." The Village Administrator contended that the documents at issue are no longer Town records, for, due to their age, the Town, if it had maintained possession, could have disposed of or destroyed them.

In your letter of December 20 to James Cole, Assistant Attorney General, you wrote that:

"1. All records in question predate 1915. 2. All of the records and other historical artifacts were donated by a private citizen to the Village of Oakfield. There appears no question that he lawfully owned and retained all of those records. Similarly there is no question raised that he was able to legally divest his interest by donation to the Village. 3. These records and artifacts are commingled and are a conglomeration of at least six service organizations, other personal memorabilia and refuse. 4. Among the physical records are the carcasses of small animals, presumably rodents. Their demise may have been caused by the boxes of rat poison which were similarly contained. We have exercised great caution in securing the records and presently do not have the immediate staff, time and funds to decontaminate, clean, categorize and preserve the records at a rate of speed that satisfies the Town Supervisor. We have proposed a joint Town/Village application in conjunction with our records management program to assist in this respect. This offer has apparently fallen on deaf or at least unresponsive ears.

"As legal counsel for the Village of Oakfield I could argue that the records of the Town have been long since abandoned. These records are ancient and predate any records management plan I am aware of."

In this regard, I believe that the documents in question at the present time constitute Village records for purposes of the Freedom of Information Law. 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."

The Court of Appeals has construed the definition as broadly as its specific language suggests. The first such decision that dealt squarely with the scope of the term "record" involved documents pertaining to a lottery sponsored by a fire department. Although the agency contended that the documents did not pertain to the performance of its official duties, i.e., fighting fires, but rather to a "nongovernmental" activity, the Court rejected the claim of a "governmental versus nongovernmental dichotomy" [see Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581 (1980)] and found that the documents constituted "records" subject to rights of access granted by the Law. Moreover, the Court determined that:

"The statutory definition of 'record' makes nothing turn on the purpose for which it relates. This conclusion accords with the spirit as well as the letter of the statute. For not only are the expanding boundaries of governmental activity increasingly difficult to draw, but in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities..." (id.).

In a decision involving records prepared by corporate boards furnished voluntarily to a state agency, the Court of Appeals reversed a finding that the documents were not "records," thereby rejecting a claim that the documents "were the private property of the intervenors, voluntarily put in the respondents' 'custody' for convenience under a promise of confidentiality" [Washington Post v. Insurance Department, 61 NY 2d 557, 564 (1984)]. Once again, the Court relied upon the definition of "record" and reiterated that the purpose for which a document was prepared or the function to which it relates are irrelevant. Moreover, the decision indicated that "When the plain language of the statute is precise and unambiguous, it is determinative" (id. at 565).

Based upon the definition of "record" and judicial interpretations, any documents that the Village has acquired would in my view constitute "records" falling within the coverage of the Freedom of Information Law, regardless of their origin or function.

Notwithstanding the foregoing, the means by which the donor of the records acquired them is unknown. Whether the documents constitute "records" for purposes of the Local Government Records Law is, from my perspective, unclear. For the purposes of that law, §57.17 of the Arts and Cultural Affairs Law defines the term "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 pursuant to law or in connection with the transaction of public business."

In my view, the records at issue did not come into possession of the Village "in connection with the transaction of public business." Does a donation made by a person legally able to do so result in a finding that the records were "received...pursuant to law"? I cannot answer that question. Again, it is doubtful under the circumstances that there is any law that may be cited to answer the question of ownership of the records.

I have discussed the matter with Tom Mills, Co-director of the State Archives and Records Administration (SARA), the agency that deals directly with issues involving records management and preservation. He suggested that Village and Town officials seek the services of SARA's Regional Advisory Officer who can offer expert advice and may be able to mediate. The Regional Advisory Officer, Jim Tammaro, may be contacted by phone at 847-7903 or in writing at the Mahoney State Office Building, Buffalo, NY 14202.

I regret that I cannot be of greater assistance.



Robert J. Freeman
Executive Director


cc: Mark D. Colopy, Village Administrator
Kenneth Dodd, Town Supervisor
Richard D. Yanker, Town Attorney
Jim Tammaro, Regional Advisory Officer