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May 20, 1997

 

 

 

Ms. Terry Simmons
280 Hudson Avenue
Stillwater, NY 12180

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. Simmons:

I have received your letters of April 29 and May 12, as well
as related correspondence. You have raised a series of questions
concerning the implementation of both the Freedom of Information
Law and the Open Meetings Law by the Town of Stillwater.

An initial issue pertains to requests for records concerning
the Town's budget and budget-related documentation. Although the
Town Supervisor acknowledged the receipt of the requests, no
indication was given as to when the materials would be made
available to you. In this regard, the Freedom of Information Law
provides direction concerning the time and manner in which agencies
must respond to requests. Specifically, §89(3) of that statute
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.
Similarly, if an agency acknowledges the receipt of a request in
writing but fails to provide a written "statement of the
approximate date when such request will be granted or denied," the
agency in my view would have failed to comply with §89(3).
Although receipt of your request was acknowledged in writing, the
written acknowledgement provides no estimated date indicating when
a determination concerning access would be made. In a somewhat
analogous situation in which the court found that a request was
constructively denied, it was stated that:

"The acknowledgement letters in this
proceeding neither granted nor denied
petitioner's request nor approximated a
determination date. Rather, the letters were
open ended as to time as they stated, 'that a
period of time would be required to ascertain
whether such documents do exist, and if they
did, whether they qualify for inspection'...

"It should also be noted that petitioner did
not sit idle during this period but rather
made numerous efforts to obtain a decision
from respondent including the submission of a
follow up letter to the Records Access Officer
and submission of various requests for said
records with the different offices of the
Department of Transportation.

"Therefore, this court finds that respondent
is estopped from asserting that this
proceeding is improper due to petitioner's
failure to appeal the denial of access to
records within 30 days to the agency head, as
provided in Public Officers Law §89(4)(a)"
(Bernstein v. City of New York, Supreme Court,
NYLJ, November 7, 1990).

When a request is constructively denied or denied in writing,
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)].

The authority of an agency to take up to five business days to
respond to a request or, if warranted, to take additional time by
acknowledging the receipt of a request in accordance with §89(3),
is not intended to enable agencies to delay disclosure
unnecessarily. As stated by the Court of Appeals, the State's
highest court, in a discussion of the scope and intent of the
Freedom of Information Law:

"Key is the Legislature's own unmistakably
broad declaration that, '[as] state and local
government services increase and public
problems become more sophisticated and complex
and therefore harder to solve, and with the
resultant increase in revenues and
expenditures, it is incumbent upon the state
and its localities to extend public
accountability wherever and whenever feasible'
(emphasis added; Public Officers Law, section
84).

"...For 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-Rockland
Newspapers v. Kimball, 50 NY2d 575, 579
(1980)].

To be consistent with the intent of the Freedom of Information
Law and its broad interpretation by the state's highest court, I
believe that the Town must give effect to the Law so as to "extend
public accountability wherever and whenever feasible."

With respect to rights of access, as a general matter, the
Freedom of Information Law is based upon a presumption of access.
Stated differently, all records of an agency are available, except
to the extent that records or portions thereof fall within one or
more grounds for denial appearing in §87(2)(a) through (i) of the
Law.

While one of the grounds for denial is relevant to an analysis
of rights of access, due to its structure, I believe that it
requires the disclosure of the kinds of records in which you are
interested. Section 87(2)(g) permits 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.

The records that you are seeking would constitute "inter-agency or intra-agency" materials. However, I believe that they
must be disclosed, for they would appear to consist of "statistical
or factual tabulations or data" available under §87(2)(g)(i) or
represent an "external audit" available under §87(2)(g)(iv).

Further, some of the material may be the same in substance as
that required to be maintained and made available pursuant to
§29(4) of the Town Law. That provision states that the Supervisor:

"Shall keep an accurate and complete account
of the receipt and disbursement of all moneys
which shall come into his hands by virtue of
his office, in books of account in the form
prescribed by the state department of audit
and control for all expenditures under the
highway law and in books of account provided
by the town for all other expenditures. Such
books of account shall be public records, open
and available for inspection at all reasonable
hours of the day, and, upon the expiration of
his term, shall be filed in the office of the
town clerk."

In addition, subdivision (1) of §119 of the Town Law states in part
that:

"When a claim has been audited by the town
board of the town clerk shall file the same in
numerical order as a public record in his
office and prepare an abstract of the audited
claims specifying the number of the claim, the
name of the claimant, the amount allowed and
the fund and appropriation account chargeable
therewith and such other information as may be
deemed necessary and essential, directed to
the supervisor of the town, authorizing and
directing him to pay to the claimant the
amount allowed upon his claim."

That provision also states that "The claims shall be available for
public inspection at all times during office hours."

Lastly, you referred to a meeting held by three members of the
Town Board during which a decision was made. Having contacted the
Town Clerk to learn more about the meeting, you were informed that
notice of the meeting was not posted and that no minutes were
prepared.

In this regard, by way of background, it is emphasized that
the definition of "meeting" [see Open Meetings Law, §102(1)] has
been broadly interpreted by the courts. In a landmark decision
rendered in 1978, the Court of Appeals, the state's highest court,
found that any gathering of a quorum of a public body for the
purpose of conducting public business is a "meeting" that must be
convened open to the public, whether or not there is an intent to
take action and regardless of the manner in which a gathering may
be characterized [see Orange County Publications v. Council of the
City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)].

I point out that the decision rendered by the Court of Appeals
was precipitated by contentions made by public bodies that
so-called "work sessions" and similar gatherings held for the
purpose of discussion, but without an intent to take action, fell
outside the scope of the Open Meetings Law. In discussing the
issue, the Appellate Division, whose determination was unanimously
affirmed by the Court of Appeals, stated that:

"We believe that the Legislature intended to
include more than the mere formal act of
voting or the formal execution of an official
document. Every step of the decision-making
process, including the decision itself, is a
necessary preliminary to formal action.
Formal acts have always been matters of public
record and the public has always been made
aware of how its officials have voted on an
issue. There would be no need for this law if
this was all the Legislature intended.
Obviously, every thought, as well as every
affirmative act of a public official as it
relates to and is within the scope of one's
official duties is a matter of public concern.
It is the entire decision-making process that
the Legislature intended to affect by the
enactment of this statute" (60 AD 2d 409,
415).

The court also dealt with the characterization of meetings as
"informal," stating that:

"The word 'formal' is defined merely as
'following or according with established form,
custom, or rule' (Webster's Third New Int.
Dictionary). We believe that it was inserted
to safeguard the rights of members of a public
body to engage in ordinary social
transactions, but not to permit the use of
this safeguard as a vehicle by which it
precludes the application of the law to
gatherings which have as their true purpose
the discussion of the business of a public
body" (id.).

Based upon the direction given by the courts, if a majority of
the Town Board gathers to discuss public business, in their
capacities as Board members, any such gathering, in my opinion,
would constitute a "meeting" subject to the Open Meetings Law.

Moreover, every meeting must be preceded by notice. Section
104 of the Open Meetings Law pertains to notice of meetings and
states that:

"1. Public notice of the time and place of a
meeting scheduled at least one week prior
thereto shall be given to the news media and
shall be conspicuously posted in one or more
designated public locations at least
seventy-two hours before each meeting.

2. Public notice of the time and place of
every other meeting shall be given, to the
extent practicable, to the news media and
shall be conspicuously posted in one or more
designated public locations at a reasonable
time prior thereto.

3. The public notice provided for by this
section shall not be construed to require
publication as a legal notice."

Stated differently, if a meeting is scheduled at least a week in
advance, notice of the time and place must be given to the news
media and to the public by means of posting in one or more
designated public locations, not less than seventy-two hours prior
to the meeting. If a meeting is scheduled less than a week an
advance, again, notice of the time and place must be given to the
news media and posted in the same manner as described above, "to
the extent practicable", at a reasonable time prior to the meeting.
Therefore, if, for example, there is a need to convene quickly, the
notice requirements can generally be met by telephoning the local
news media and by posting notice in one or more designated
locations.

When action is taken by a public body, minutes must be
prepared in accordance with §106 of the Open Meetings Law. That
provision 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."

I note, too, that §63 of the Town Law provides in part that
"The vote upon every question shall be taken by ayes and noes, and
names of the members present and their votes shall be entered in
the minutes."

In an effort to enhance compliance with and understanding of
the Freedom of Information and Open Meetings Laws, copies of this
response will be forwarded to the Supervisor and the Town Board.

I hope that I have been of assistance. Should any further
questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Paul Lilac, Supervisor
Town Board