January 16, 1996



Mr. Bernard J. Zolnowski
861 Seneca Creek Road
West Seneca, NY 14224

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 Mr. Zolnowski:

I have received your letter of January 3 in which you requested an opinion concerning two issues relating to access to records.

First, you wrote that City Council members are "destroying documents and files before leaving office." In this regard, the Freedom of Information Law governs public rights of access to records. More relevant in my view is the "Local Government Records Law", Article 57-A of the Arts and Cultural Affairs Law, which 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."

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...

2. No local officer shall destroy, sell or otherwise dispose of any public record without the consent of the commissioner of education. The commissioner of education shall, after consultation with other state agencies and with local government officers, determine the minimum length of time that records need to be retained. Such commissioner is authorized to develop, adopt by regulation, issue and distribute to local governments retention and disposal schedules establishing minimum retention periods..."

Based on the foregoing, records cannot be destroyed without the consent of the Commissioner of Education, and local officials cannot destroy or dispose of records until the minimum period for the retention of the records has been reached.

The second issue involves a demand by a county agency that fees for copies of records prepared pursuant to the Freedom of Information Law be paid by certified check. You added that "no check has ever bounced or been dishonored and other branches of County government have accepted personal checks with no problems." There is nothing in the Freedom of Information Law that pertains specifically to the means by which fees for copies should be paid. In the only decision of which I am aware, which, I note, involved Erie County, it was found that the County Board of Elections "failed to provide a reasonable and rationale basis to justify their policy of requiring payment of fees for copying of records in the form of only bank checks or money orders", and it was ordered that the agency be required to accept payment in United States currency as well [Reese v. Mahoney, Supreme Court, Erie County, June 28, 1984]. The court did not refer to payment by personal check, and that does not appear to have been at issue.

It is suggested that you review the rules and regulations promulgated by the County pursuant to the Freedom of Information Law, for they may address the matter. If there is no statement on the subject offered in the regulations, I believe that the direction provided by the court in Reese offers appropriate guidance.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Corporation Counsel, City of Buffalo
County Attorney, Erie County