Opn. No. ( 1978 )

Robert J. Nicholson, Esq. Town Attorney, New Haven

We acknowledge receipt of your letter stating that many of the old town records of your town are deteriorating and that the town has a problem finding space in which to store them. You state the town is considering constructing a building in the town sufficient in size to store these records and also, on a rental basis, the records of several other towns which find themselves with a similar storage space problem. You request our opinion whether a town may authorize storing its old town records in a location outside of the town and whether a town may lease surplus space in a building it owns to another town so that the other town could use the rented space for the storage of its old records.

A town may construct needed buildings (Town Law § 220 subd 3) but has no authority to construct a building which is larger than it will need itself in the foreseeable future (1973 Opns Atty Gen 219). This being the case, it is our opinion that your town may not deliberately construct a building of sufficient size for storage of your own official town records and those of other towns.

Town Law § 30 subd 1 provides that the town clerk of each town "[s] shall have the custody of all the records, books and papers of the town. * * *" This provision has been interpreted to mean that the records must be maintained by the town clerk in the town clerk's office; the town board may determine where the town clerk's office may be within the confines of the town but may not require the town clerk to keep such records at any place other than in the town clerk's office; and the town clerk's office must be within the town (1975 Opns Atty Gen 112; 71 Compt 705).

In our opinion, any such building as your town is contemplating for use to store your old town records would have to be in your town and a part of the town clerk's office; other towns could not use it to store their old records because their records must be kept within their own towns, not in yours.

We mention Education Law, Article 3, Part III, which includes sections 140 through 150, and in particular draw your attention to section 147 thereof which deals with destruction of public records subject to permission from the Commissioner of Education; General Municipal Law § 51-a relating to reproduction of records on films and destruction of records so reproduced and to Public Officers Law §§ 65-a and 65-b in connection with reproduction of records on films and destruction of the original public records.

It may be that by going through the proper procedures and obtaining permission, it would be more satisfactory and much less expensive to reproduce your ancient records on film and provide fire-safe vault storage facilities for the microfilm records in the town clerk's office than it would be to construct a building for the storage of those records or to provide additional space in a contemplated building for the physical storage of the original records.