April 4, 1996



Mr. John L. Graham
P.O. Box 89
Richmondville, NY 12149

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. Graham:

I have received your letter of March 21 and the materials attached to it.

As I understand the matter, you requested copies of tape recordings of certain meetings of the Richmondville Town Board. In response, the Town Clerk indicated that she does not have the equipment needed to copy the tapes and that she cannot relinquish custody of the tapes, because they are the property of the Town. However, she offered to enable you "to either listen to them and/or tape them by setting your recorder in front of [hers]." In your letter to me, you wrote that you "do not have the capabilities of making copies of recordings", and do not feel that the Clerk's statement represents "a valid reason for being denied copies of the tapes requested."

From my perspective, if indeed the Town does not maintain the equipment necessary to prepare duplicates of the tapes, the Clerk's response served as a reasonable offer to accommodate you. If you have a tape recorder that can be used to listen to the Clerk's tapes, it is likely that you have the ability to do as the Clerk suggested, i.e., duplicate the Town's tapes by placing your recorder next to hers. If your recorder cannot duplicate the tapes in that manner, perhaps you could borrow a tape recorder that would meet your needs. Alternatively, as she also suggested, you could listen to the tape at the Clerk's office.

With respect to the custody of the tapes, I direct your attention to 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."

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...

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 must "have custody" and "adequately protect" records until the minimum period for the retention of the records has been reached.

I hope that the foregoing serves to clarify your understanding of the matter and that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Margaret A. Wohlfarth, Town Clerk