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May 12, 1997

 

 

 

Ms. Robin Kitson
Corresponding Secretary
Ripley Taxpayer Watchgroup
PO Box 504
Ripley, NY 14775

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 Ms. Kitson:

I have received your letter of April 16 in which you raised
issues relating to both the Freedom of Information and Open
Meetings Laws. You also asked how you or your organization might
prohibit a particular individual from serving as Ripley Town
Attorney.

In this regard, the advisory jurisdiction of the Committee on
Open Government is limited to matters involving access to
government records and meetings. As such, issues pertaining to
conflicts of interest or the attorney are outside the functions of
this office.

The initial issue involves the timeliness of responses to
requests for records directed to the Town. Here I point out that
the Freedom of Information Law provides direction concerning the
time and manner in which agencies must respond to requests.
Specifically, §89(3) of the Freedom of Information Law states in
part that:

"Each entity subject to the provisions of this
article, within five business days of the
receipt of a written request for a record
reasonably described, shall make such record
available to the person requesting it, deny
such request in writing or furnish a written
acknowledgement of the receipt of such request
and a statement of the approximate date when
such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the
receipt of a request is given within five business days, or if an
agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my
opinion, be considered to have been constructively denied. In such
a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. That
provision states in relevant part that:

"...any person denied access to a record may
within thirty days appeal in writing such
denial to the head, chief executive, or
governing body, who shall within ten business
days of the receipt of such appeal fully
explain in writing to the person requesting
the record the reasons for further denial, or
provide access to the record sought."

In addition, it has been held that when an appeal is made but
a determination is not rendered within ten business days of the
receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her
administrative remedies and may initiate a challenge to a
constructive denial of access under Article 78 of the Civil
Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57
NY 2d 774 (1982)].

I note that although an agency must grant access to records,
deny access or acknowledge the receipt of a request within five
business days, when such acknowledgement is given, there is no
precise time period within which an agency must grant or deny
access to records. The time needed to do so may be dependent upon
the volume of a request, the possibility that other requests have
been made, the necessity to conduct legal research, the search and
retrieval techniques used to locate the records and the like. In
short, when an agency acknowledges the receipt of a request because
more than five business days may be needed to grant or deny a
request, so long as it provides an approximate date indicating when
the request will be granted or denied, and that date is reasonable
in view of the attendant circumstances, I believe that the agency
would be acting in compliance with law.

Notwithstanding the foregoing, in my view, every law must be
implemented in a manner that gives reasonable effect to its intent,
and I point out that in its statement of legislative intent, §84 of
the Freedom of Information Law states that "it is incumbent upon
the state and its localities to extend public accountability
wherever and whenever feasible." Therefore, if records are clearly
available to the public under the Freedom of Information Law, or if
they are readily retrievable, there may be no basis for a lengthy
delay in disclosure. As the Court of Appeals has asserted:

"...the successful implementation of the
policies motivating the enactment of the
Freedom of Information Law centers on goals as
broad as the achievement of a more informed
electorate and a more responsible and
responsive officialdom. By their very nature
such objectives cannot hope to be attained
unless the measures taken to bring them about
permeate the body politic to a point where
they become the rule rather than the
exception. The phrase 'public accountability
wherever and whenever feasible' therefore
merely punctuates with explicitness what in
any event is implicit" [Westchester News v.
Kimball, 50 NY2d 575, 579 (1980)].

Further, in my opinion, if, as a matter of practice or policy,
an agency acknowledges the receipt of requests and indicates in
every instance that it will determine to grant or deny access to
records within a particular period following the date of
acknowledgement, such a practice or policy would be contrary to the
thrust of the Freedom of Information Law. If a request is
voluminous and a significant amount of time is needed to locate
records and review them to determine rights of access, a delay
beyond five business days, in view of those and perhaps the other
kinds of factors mentioned earlier, might be reasonable. On the
other hand, if a record or report is clearly public and can be
found easily, there would appear to be no rational basis for
delaying disclosure. In a case in which it was found that an
agency's "actions demonstrate an utter disregard for compliance set
by FOIL", it was held that "[t]he records finally produced were not
so voluminous as to justify any extension of time, much less an
extension beyond that allowed by statute, or no response to appeals
at all" (Inner City Press/Community on the Move, Inc. v. New York
City Department of Housing Preservation and Development, Supreme
Court, New York County, November 9, 1993).

The second issue involves minutes of meetings and especially
those concerning executive sessions. In this regard, I direct your
attention to §106 of the Open Meetings Law which provides 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 that minutes of open meetings
must be prepared and made available within two weeks of the
meetings to which they pertain.

I point out that, as a general rule, a public body may take
action during a properly convened executive session [see Open
Meetings Law, §105(1)]. If action is taken during an executive
session, minutes reflective of the action, the date and the vote
must be recorded in minutes pursuant to §106(2) of the Law. If no
action is taken, there is no requirement that minutes of the
executive session be prepared.

It is noted that minutes of executive sessions need not
include information that may be withheld under the Freedom of
Information Law. However, when a public body makes a final
determination during an executive session, that determination will,
in most instances, be public. For example, although a discussion
to hire or fire a particular employee could clearly be discussed
during an executive session [see Open Meetings Law, §105(1)(f), a
determination to hire or fire that person must be recorded in
minutes and would be available to the public under the Freedom of
Information Law. Further, as required by §106(3), such minutes
must be prepared and made available within one week of an executive
session.

In an effort to enhance compliance with and understanding of
the Open Meetings Law, a copy of this response will be forwarded to
the Ripley Town Board.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: Town Board