Submission Date:
Question:
We attended the excellent FOIL workshop just offered by WNYLRC and hope you repeat it. Our institution has any number of manuscripts and papers that could be considered Fugitive Records: archival material from government offices, most of which was donated decades before the advent of the NY State Archives and modern public record regulations. Multiple area institutions are probably in the same situation.
We have physical custody (long story) of the papers of a retired congressmember from the area, but we deliberately did not send a Deed of Gift, because we did not want legal responsibility and ownership. We would prefer to return the papers to the congessmember because the collection is just too large for us to responsibly house or process. Negotiations along these lines have not been successful and we have not found another taker for them.
My questions are:
1. Are a congressmember's papers considered public records and subject to FOIL requests?
2. If we do have the congressmember sign a deed of gift, so that we can weed, discard, and transfer as we see fit, are we liable if someone submits a FOIL request for records that we disposed of?
3. For archival records given to us from government offices almost a hundred years ago, are we obligated to repatriate them?
4. Also, are these archival records donated decades ago subject to FOIL requests?
Answer:
It was an excellent workshop.[1] Nice work, WNYLRC.
As reviewed at the 10/24/18 session, FOIL[2], and its federal cousin, FOIA[3], govern the accessibility of public records. When these laws are paired, they create a giant net, facilitating compelled disclosure of documents generated by local, state, and federal governments.
But not all government documentation is accessible through FOIA or FOIL. Some types of records are omitted by specific exemption; others were never intended to fall under the compelled disclosure laws in the first place.
Congressional records are of the latter type; FOIA was never intended to mandate disclosure of records created by the U.S. Congress. So in the member’s scenario, although there could be an array of other laws restricting the content from donation, duplication, and/or display—and some laws compelling disclosure—FOIA/FOIL does not apply.
Moving to the next part of the member’s question: What if your institution was given records from an entity subject to FOIA or FOIL? Can your institution be compelled to disclose them? Depending on the nature of your institution, maybe. But remember—FOIL applies only to government entities. So, no matter what type of archives it hosts,[4] if your library or museum is private, your institution is not subject to FOIL.[5]
And now for the final parts of the member’s submission: Can FOIL and FOIA considerations impact acceptance of donations? And if your private institution has, in all innocence, stewarded government-generated records for fifty or one hundred years, will it be forced to turn them over?
I will answer these questions using a short (very short) story.
One day, as you staff the New York Museum of Asphalt[6], a town supervisor arrives at your door, breathless with excitement. In his hands, he holds the complete file of the first smooth-paved road in his town! Buried amidst the crumbling original material, you see a hand-written petition by a local cycling club, asking the town to smooth over its bone-jarring cobblestones.
The supervisor is happy and proud; he rescued the records from a dumpster at the Town Hall while renovations were being done to the moldy basement.[7] You are excited and gratified; this would be the perfect complement to the Museum of Asphalt’s government procurement records dating from around 1900.
But then you see that all the supervisor’s records are from before 1910.
Uh-oh.
Because the records pre-date 1910, the town supervisor needs to contact the New York State Archives.
Why? In New York, local governments cannot dispose of any records created before 1910 without written approval from the State Archives. This rule applies regardless of the retention period otherwise set by law and regulation.
This “1910 requirement” has its roots in §57 of the Arts and Cultural Affairs Law, which states: “No local officer shall destroy, sell or otherwise dispose of any public record without the consent of the commissioner of education.”
So to bring this back to FOIL… not only must New York’s governments disclose certain records, they must also ensure those records are properly retained. Advisory opinions about the intersection of these two obligations can be found on the New York Committee on Open Government’s page at https://www.dos.ny.gov/coog/foil_listing/findex.html. [8]
So does this mean that when the supervisor contacts the State Archives, he has to report the Museum of Asphalt’s old government records, too?
No.
While these laws are important tools for protecting New York’s heritage, they do not in and of themselves compel return of government records held by a private entity. I found no case law or advisory opinions recommending such a course of action. And (both for the fun of it, and to leave no stone unturned), I called Sarah Durling, my region’s rep at the NY Archives. We discussed that while the preservation obligations of government officials are very clear, there is no “enforcement wing,” of the Archives directing return of government records once they have been accessioned and stewarded by private hands.
Of course, if the records were stolen, obtained via fraud, or conditionally granted by a donor, it is possible they could be removed from a private collection. But there is no risk that after simple notification, an agent from the NY Archives will arrive at your institution, adjust their fedora, and snatch the documents from your temperature-controlled storage unit while saying “This belongs in another museum.”[9]
So to re-cap: not all government records are subject to FOIA or FOIL. An entity not subject to FOIL cannot be compelled to grant access to documents simply because they originated with a FOIL-able entity[10]. And when it comes to accepting donations of government documents, the constraints of the NY Arts 7 Cultural Affairs law, not FOIL, apply.
And pro tip: reading the FOIL “Advisory Opinions” on the NY Committee on Open Government’s page is a blast.
Thank you!
[1] I did not put the workshop on, so this is not puffery. But I was there, and the two presenters, attorney Mike Kuzma and bookstore owner/activist Leslie Pickering—who not only know FOIL/FOIA, but live FOIL/FOIA—were both educational and inspiring.
[2] New York’s “Freedom of Information Law”
[3] U.S.A.’s “Freedom of Information Act”
[4] There is, of course, an exception to everything (even exceptions). If your library was the recipient of state or federal grant money, or other conditional funds or program, the records related to that particular matter might be subject to FOIA or FOIL. But only those records, and not information tangentially related to them (like the e-mails generated on a grant-funded computer).
[5] For a GREAT breakdown on this, see the NY Committee on Open Government’s Advisory Opinion at https://docs.dos.ny.gov/coog/ftext/f17386.html.
[6] I tried to make something suitably obscure up, but lo and behold, there really is a Museum of Asphalt! It’s in Sacramento, California. Let’s pretend this one is in New York.
[7] I know this scenario is likely causing some archivists out there an all-too-familiar pain. I am sorry, but this is how it goes, right?
[8] The FOIL guidance on this page—which included library-specific topics—is fascinating. My new G-rated fantasy starts with a walk in a wind-swept pine forest, and ends with unlimited free time to rummage around the opinions there.
[9] I told Sara Durling that if the New York State Archives ever does create this sort of job, they should call me, because what a cool job.
[10] If that entity is a contractor for the FOIL-able entity, performing a government function (like a microfilm service), that’s a different story.
