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April 14, 2000

FOIL-AO-12040

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 Mr. MacFarlane:

I have received your letter of March 7 in which you asked whether the Freedom of
Information Law requires "an agency to keep a separate list of the voting records of each
individual or is it merely sufficient that the records are available."

From my perspective, that statute does not require that a separate list or record
indicating members' votes be maintained.

In this regard, by way of background, since the Freedom of Information Law was
enacted in 1974, it has imposed what some have characterized as an "open vote" requirement.
Although the Freedom of Information Law generally pertains to existing records and
ordinarily does not require that a record be created or prepared [see §89(3)], an exception to
that rule involves voting by agency members. Specifically, §87(3) of the Freedom of
Information Law has long required that:

"Each agency shall maintain:

(a) a record of the final vote of each member in every agency
proceeding in which the member votes..."

Stated differently, when a final vote is taken by members of an agency, a record must be
prepared that indicates the manner in which each member who voted cast his or her vote.
Further, in an Appellate Division decision that was affirmed by the Court of Appeals, it was
found that "[t]he use of a secret ballot for voting purposes was improper", and that the
Freedom of Information Law requires "open voting and a record of the manner in which each
member voted" [Smithson v. Ilion Housing Authority, 130 AD 2d 965, 967 (1987), aff'd 72
NY 2d 1034 (1988)].

Based on the foregoing, to comply with the Freedom of Information Law, I believe
that a record must be prepared and maintained indicating how each member cast his or her
vote, disclosure of the record of votes represents the only means by which the public could
know how their representatives asserted their authority. Ordinarily, a record of votes of the
members will appear in minutes required to be prepared pursuant to §106 of the Open
Meetings Law, and in my opinion, so long as minutes indicate how each member cast his or
her vote, the requirements of the Freedom of Information Law would be satisfied.

I hope that I have been of assistance.

RJF:jm