December 23, 1998
Ms. Francine Jakob
1440 Cornwell Rd.
Addison, NY 14801
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
Dear Ms. Jakob:
I have received your letter of November 30 and appreciate your kind words. You
have raised issues relating to compliance with the Freedom of Information and Open Meetings
Law by the Town of Tuscarora.
You wrote initially about difficulty in obtaining a tentative budget. In this regard, I
believe that the tentative budget must be disclosed in great measure, if not in its entirety. 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. Relevant is the provision to which you alluded, §87(2)(g), which deals with what
might be characterized as internal documents. While that provision potentially serves as a
basis for a denial of access, due to its structure, it often requires substantial disclosure.
Specifically, §87(2)(g) permits am 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.
In short, to the extent that the tentative budget consists of "statistical or factual
information," i.e., numbers, I believe that it must be disclosed. On the other hand, if it
contains narrative expressions of opinion, recommendation or justification, for example, those
portions may be withheld.
As you may be aware, following a review and alteration of the tentative budget by a
town board, that document becomes the preliminary budget. I note, too, that §106(4) of the
Town Law provides that "[t]he preliminary budget shall be filed in the office of the town clerk
and the town clerk shall reproduce for public distribution as many copies as the town board
may direct." In addition, the town board must hold a public hearing on the preliminary budget
in accordance with §108 of the Town Law. That statute, in consideration of your inquiry,
states in relevant part that:
"Notice of such public hearing shall be published at least once
in the official newspaper, or if no official newspaper has been
designated, in any newspaper having general circulation in the
town....The notice of hearing shall state the time when and the
place where the public hearing will be held, the purpose
thereof and that a copy of the preliminary budget is available
at the office of the town clerk where it may be inspected by
any interested person during office hours...The town clerk
shall cause a copy of the notice to be posted on the signboard
of the town, maintained pursuant to subdivision six of section
thirty of this chapter, not later than five days before the day
designated for such hearing...."
Section 87(2)(g) would also govern rights of access to a tentative amendment of a
town law. If indeed a proposal is preliminary and has not yet been disclosed at or through
discussions at one or more open meetings, I do not believe that the Town would be required
to disclose the record in question. If, however, discussion of the matter in public has resulted
in a disclosure of the proposal, I believe that the record containing the proposal would be
accessible, for the Board would have effectively waived its ability to deny access. Further,
if a proposed local law is the subject of a public hearing, the text of the proposed law must
generally be disclosed prior to the hearing.
You also complained that records available from a court were made available by the
Town only after certain portions of the records were deleted. From my perspective, if a
record is available in its entirety from a court, a duplicate of the same record maintained by
a municipality would be equally available.
Next, you indicated that minutes of meetings were not accurate or did not reflect what
was said at a meeting. Here I direct your attention to the Open Meetings Law. Section 106
pertains to minutes, and subdivision (1) provides what might be viewed as minimum
requirements concerning the contents of minutes. Specifically, that provision states that:
"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."
Based on the foregoing, it is clear that minutes need not consist of a verbatim account of what
is said at a meeting or that they include reference to each comment made during a meeting.
So long as the minutes consist of "a record or summary" of the items required to be included
in the minutes, the Board, in my opinion, would be complying with law.
Lastly, the Open Meetings Law clearly provides the public with the right "to observe
the performance of public officials and attend and listen to the deliberations and decisions that
go into the making of public policy" (see Open Meetings Law, §100). However, the Law is
silent with respect to the issue of public participation. Consequently, by means of example,
if a public body does not want to answer questions or permit the public to speak or otherwise
participate at its meetings, I do not believe that it would be obliged to do so. On the other
hand, a public body may choose to answer questions and permit public participation, and
many do so. When a public body does permit the public to speak or otherwise authorize
public participation, I believe that it should do so based upon reasonable rules that treat
members of the public equally.
I hope that the foregoing serves to enhance your understanding of the matters that you
raised and that I have been of assistance.
Robert J. Freeman
cc: Town Board
Hon. Garry Payne-Coykendall, Clerk