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 FOIL-AO-14084

June 18, 2003

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear

I have received our letter in which you questioned the propriety of a response to your request for records of the East Williston School District.

According to your letter, your challenge to the nomination of a candidate for the Board of Education was denied by the "nominating petition Review Board and the School Board." Although you obtained the Review Board's written decision and were permitted to inspect minutes of the Board of Education meeting during which Board rendered its decision, your were not permitted to obtain a copy of the minutes, for they had not been "accepted" by the Board. Further, you wrote that "the portion of the written decision of the Review Board given to [you] did not contain the basis on which they made their decision, which, subsequently, the School Board cited as what they used to make their decision." That portion of the record was withheld on that ground that it is "intra-agency information not foilable."

In this regard, I offer the following comments.

First, it is emphasized that the Freedom of Information Law is expansive in its scope, for it pertains to all agency records, such as those of a school district, and defines the term record expansively in §86(4) to mean:

"... any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

Based on the foregoing, once information exists in some physical form, i.e., a draft, or "unaccepted" minutes, it constitutes a "record" subject to rights conferred by the Freedom of Information Law.

Second, §106 of the Open Meetings Law pertains to minutes of meetings and states that:

"1. Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.

2. Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.

3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session."

In view of the foregoing, it is clear in my opinion that minutes of open meetings must be prepared and made available "within two weeks of the date of such meeting."

There is nothing in the Open Meetings Law or any other statute of which I am aware that requires that minutes be approved. Nevertheless, as a matter of practice or policy, many public bodies approve minutes of their meetings. In the event that minutes have not been approved, to comply with the Open Meetings Law, it has consistently been advised that minutes be prepared and made available within two weeks, and that if the minutes have not been approved, they may be marked "unapproved", "draft" or "preliminary", for example. By so doing within the requisite time limitations, the public can generally know what transpired at a meeting; concurrently, the public is effectively notified that the minutes are subject to change. If minutes have been prepared within less than two weeks, again, I believe that those unapproved minutes would be available as soon as they exist, and that they may be marked in the manner described above.

Third, returning to the Freedom of Information Law, when records are available under that law, they are available for inspection and copying. Further, §89(3) states that an agency must make a copy of an accessible record upon payment of or offer to pay the requisite fee, which cannot exceed twenty- five cents per photocopy. In short, the minutes, irrespective of whether they were "accepted" or approved should, in my opinion, have been copied upon request.

With respect to the portion of the record that indicated the basis of the decision, I agree that it may be characterized as "intra-agency material." However, due to the structure of the provision pertaining to intra-agency materials, it often requires disclosure. Specifically, §87(2)(g) authorizes an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter- agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

With respect to the substance of §87(2)(g) and the capacity to withhold records similar to that at issue, it has been held that:

"There is no exemption for final opinions which embody an agency's effective law and policy, but protection by exemption is afforded for all papers which reflect the agency's group thinking in the process of working out that policy and determining what its law ought to be. Thus, an agency may refuse to produce material integral to the agency's deliberative process and which contains opinions, advice, evaluations, deliberations, policy formulations, proposals, conclusions, recommendations or other subjective matter (National Labor Relations Bd. v. Sears, Roebuck & Co., supra, pp 150-153; Wu v. National Endowment for Humanities, 460 F2d 1030, 1032-1033, cert den 410 US 926). The exemption is intended to protect the deliberative process of government, but not purely factual deliberative material (Mead Data Cent. v United States Dept. of Air Force, 566 F2d 242, 256, supra). While the purpose of the exemption is to encourage the free exchange of ideas among government policy-makers, it does not authorize an agency to throw a protective blanket over all information by casting it in the form of an internal memo (Wu v. National Endowment for Humanities, supra, p1033). The question in each case is whether production of the contested document would be injurious to the consultative functions of government that the privilege of nondisclosure protects..." [Miracle Mile Associates v. Yudelson, 68 AD 2d 176, 182-183; motion for leave to appeal denied, 48 NY 2d 706 (1979)].

Insofar as intra-agency materials in which members of the Board of Education, the Review Board or staff expressed their opinions in relation to Board's final decision, I believe that those records ordinarily may be withheld. However, insofar as the document in question includes opinions or recommendations adopted by the Board and reflective of the Board's collective determination, it would, in my view, be available.

A decision rendered in Nassau County indicates that a record adopted by a decision-maker as the agency's determination is accessible under §87(2)(g)(iii). In Miller v. Hewlett-Woodmere Union Free School District #14 [Supreme Court, Nassau County, NYLJ, May 16, 1990], the court wrote that:

"On the totality of circumstances surrounding the Superintendent's decision, as present in the record before the Court, the Court finds that petitioner is entitled to disclosure. It is apparent that the Superintendent unreservedly endorsed the recommendation of the Term [sic; published as is], adopting the reasoning as his own, and made his decision based on it. Assuredly, the Court must be alert to protecting 'the deliberative process of the government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers' (Matter of Sea Crest Construction Corp. v. Stubing, 82 A.D. 2d 546, 549 [2d Dept. 1981], but the Court bears equal responsibility to ensure that final decision makers are accountable to the public. When, as here, a concord exists as to intraagency views, when deliberation has ceased and the consensus arrived it represents the final decision, disclosure is not only desirable but imperative for preserving the integrity of governmental decision making. The Team's decision no longer need be protected from the chilling effect that public exposure may have on principled decisions, but must be disclosed as the agency must be prepared, if called upon, to defend it."

In sum, I do not believe that §87(2)(g) may serve as a basis for withholding to the extent that the documentation in question represents a final agency determination. If that is the case, I believe that it would be accessible under §87(2)(g)(iii).

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Board of Education