November 10, 1995



Hon. Kenneth C. Osterhout
Town of Geddes
100 Woods Road
Solvay, NY 13209

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.

Dear Councilor Osterhout:

As you are aware, your letter of September 28 addressed to Attorney General Vacco has been forwarded to the Committee on Open Government. The Committee, a unit of the Department of State, is authorized to provide advice concerning access to government records, particularly under the Freedom of Information Law. Please note that your correspondence did not reach this office until November 2.

In your capacity as a member of the Geddes Town Board, you complained that the Supervisor has refused to share "non-confidential" mail that he receives with other members of the Town Board. As a consequence, you and other Board members have been unable to acquire information needed to carry out your duties effectively. To deal with the problem, the Board passed a resolution, but the Supervisor has indicated that he will not comply with it. The resolution, which was approved by a vote of 5 to 2, provides as follows:

"Be it resolved that all correspondence addressed to the Town of Geddes and to the Supervisor excluding personal and confidential mail addressed to the Supervisor, should be copied and routed to all Town Board members as received. Furthermore, all correspondence should be opened by the Town Clerk's Office, date stamped and logged into an incoming Letter Register and File # assigned. Furthermore, be it resolved that all correspondence in the Supervisor's possession from 1/1/95 to date be made available to the clerk who will establish a retroactive file."

In this regard, I offer the following comments.

First, from my perspective, 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 provisions...

" 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 publications."

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

Further, §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 office..."

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 town.

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.

While the Town Supervisor may have certain areas of authority or responsibility, he is but one among seven members of the Town Board. In my view, he is obliged to comply with rules and resolutions adopted by a majority of the Board, so long as such rules or resolutions are not inconsistent with law. I note that §64(3) of the Town Law states that the Town Board "Shall have the management, custody and control of all town lands, buildings and property of the town." Town property in my view clearly includes "records" as defined by both the Freedom of Information Law and the Arts and Cultural Affairs Law. Similarly, §63 of the Town Law provides that "Every act, motion or resolution shall require for its adoption the affirmative vote of a majority of all the members of the town board", and that "The board may determine the rules of its procedure."

In sum, I do not believe that the records that are the subject of your correspondence are the property of Supervisor or that he has the legal authority to exercise control over the records in the manner that you described. In an effort to enhance compliance with and understanding of applicable law, a copy of this opinion will be forwarded to the Supervisor.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Hon. Manuel Martinez, Supervisor