December 12, 1995



Ms. Cheryl H. Steinbach, CMC
Town Clerk
Town of Chautauqua
Rollman Town Office Bldg.
11 South Erie Street
Mayville, NY 14757

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 Ms. Steinbach:

I have received your letter of November 15 and various materials relating to it.

The matter involves the records maintained by the Town in conjunction with a federal drug and alcohol testing program. Access to and the retention of records acquired or prepared under the program are referenced in provisions of the Code of Federal Regulations (CFR). When you questioned the Town Supervisor with respect to your treatment of the records as the Town's records management and freedom of information officer, he indicated that "these records were exempt from any of the usual regulations since it was a federal law and therefore inapplicable to anything that had previously been adopted." Nevertheless, Robert Arnold of the State Archives and Records Administration (SARA) advised that his office had been in contact with the relevant federal agency, that it was agreed that the records in question, although prepared pursuant to federal law, should be considered local government records, and that the records would be referenced in the retention schedules promulgated by SARA.

You have sought guidance and, in this regard, I offer the following comments.

First, I agree with Mr. Arnold. While the records might be generated or maintained as a result of federal law, they are, nonetheless, Town records subject to other laws as well.

It is noted that the New York Freedom of Information Law pertains to all agency records and that §86(4) of that statute 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)].

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 "records" of the Town.

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 office..."

In my opinion, the provisions concerning the retention and disposal of the records at issue, provisions of the CFR and the schedules promulgated pursuant to law by SARA, should be viewed as existing, in essence, side by side. For purposes of the retention of those records, I believe that they must be kept as long as either of those provisions requires. If for example, one provision requires a retention period of three years, and the other requires that the same records be retained for five years, I believe that they must be retained for at least five years. In other words, the records must be retained for the longer of either of the two schedules. Moreover, while a program coordinator might have certain responsibilities regarding the records, that designation in my view in no way diminishes your authority or responsibility as the Town's records management officer, which is a position that you maintain by statute (see Arts and Cultural Affairs Law, §57.19).

With regard to access to the records, most of the records prepared pursuant to the requirements of the program would appear to be statistical in nature. Nothing in the federal rules that you supplied suggests that those kinds of records are confidential. Further, because they are Town records, I believe that they are subject to rights conferred by the Freedom of Information Law. Statistical data is generally available to the public under §87(2)(g)(i).

The one area in which denials of public access may occur involves personally identifiable information. In this area, I believe that the thrust of the federal law and the Freedom of Information Law is consistent, for §87(2)(b) of the Freedom of Information Law enables an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy".

Lastly, as in the case of your position as records management officer, I do not believe that the duties of a coordinator conflict with or supplant your responsibilities as the Town's freedom of information or records access officer. In that role, it is your primary duty to coordinate the Town's response to requests for records by members of the public. I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.



Robert J. Freeman
Executive Director


cc: Town Supervisor
Robert Arnold