Highway-defect notices must be kept for 5 years, says NYSED
Enterprise file photo — Michael Koff
The intersection of Gifford Hollow and Switzkill roads in Berne, pictured here, was the subject of a highway-defect notice filed by former Berne Town Board member Joel Willsey, who discovered that the state’s document retention schedule advised towns and cities that they could discard such notices after only one year, in violation of state law.
ALBANY COUNTY — Towns and cities in New York state that have been following the state’s record-retention schedule have been inadvertently running afoul of state law with regard to the retention of highway-defect notices, a recently-discovered discrepancy has revealed.
In New York state, prior notice of potentially dangerous road conditions is required for someone to be able to bring civil action against a municipality, Dora Ricci, a public information officer for the New York State Education Department’s Office of Cultural Education, told The Enterprise this week, making them especially critical documents.
However, while state law requires these notices to be maintained for five years in cases where no action is taken on a defect, the 422-page Local Government Retention Schedule-1 — which is the official reference issued by the New York State Archives, affiliated with the State Education Department — advises cities and towns they need to keep no-action notices for only one year, after which they can be destroyed.
“Our current retention period of one year is inadequate and needs to be lengthened to five years to satisfy the retention requirements outlined in the [Town and General Municipal] laws,” Ricci told The Enterprise this week.
“Towns and cities are required by law to retain all notices of defect to highways, etc., for five years and should do so to comply with the law,” Ricci said. “For other municipalities, they are not required by law to retain notices of defect for five years, but in order to comply with statutes of limitations relating to civil actions, we recommend that they retain such notices for five years as well.”
The discrepancy was uncovered by former Berne Town Board member Joel Willsey, who has long scrutinized Berne’s highway practices and wrote a letter to the Enterprise editor last month explaining that he had submitted 26 highway-defect notices signed by 26 people to then-Town Clerk Anita Clayton in 2020, but that a Freedom of Information Law request for all highway defect notices in 2023 turned up nothing, with the current clerk, Kristin de Oliveira, citing the state’s retention schedule.
“When we are made aware of instances where the law requires a longer retention period than indicated in the LGS-1, it is our practice to issue a memo to local government officials to inform them of the need to retain the records longer,” Ricci told The Enterprise this week of the local government schedule. “This memo we add to the front of the PDF version of the LGS-1 available on the State Archives’ website at www.archives.nysed.gov. We plan to issue a memo shortly. In addition, our plan is to change the retention period for LGS-1 item 1079c to five years when we next revise the LGS-1.”
