NY.gov Portal State Agency Listing

 

October 19, 2000

FOIL-AO-12348

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

I have received your letter of August 30 in which you raised a series of questions
relating to the Village of Elmsford.

First, if a member of the Board of Trustees "E-Mails the Village Clerk instructing her
to perform tasks and pass on instructions to the Building Inspector and the Mayor", you
asked whether the e-mail is "subject to FOIL." In this regard, the Freedom of Information
Law pertains to all agency records, and §86(4) of that statute defines the term "record"
expansively to include:

"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, I believe that an e-mail communication between Village officials
would clearly constitute a "record" that falls within the coverage of the Freedom of
Information Law.

As a general matter, that 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.

Pertinent to the matter is §87(2)(g), which enables 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. Whether a single trustee has the authority to "instruct" is
questionable. Nevertheless, if the communication could be characterized as an "instruction to
staff that affects the public", I believe that it would be accessible under §87(2)(g)(ii).

Second, if three trustees meet or otherwise communicate and instruct the clerk to
carry out certain activities, you asked whether "this is in violation of the Open Meetings
Law." In my view, a board of trustees may exercise its authority only at a meeting during
which a majority is physically present that is preceded by notice to all of the members.

The Open Meetings Law pertains to meetings of public bodies, and §102(2) of that
statute defines the phrase "public body" to mean:

"...any entity for which a quorum is required in order to
conduct public business and which consists of two or more
members, performing a governmental function for the state or
for an agency or department thereof, or for a public corporation
as defined in section sixty-six of the general construction law,
or committee or subcommittee or other similar body of such
public body."

Based on the foregoing, a village board of trustees clearly constitutes a "public body."

Especially relevant in my view is §41 of the General Construction Law which
provides guidance concerning quorum and voting requirements. Specifically, the cited
provision states that:

"Whenever three of more public officers are given any power
or authority, or three or more persons are charged with any
public duty to be performed or exercised by them jointly or as a
board or similar body, a majority of the whole number of such
persons or officers, gathered together in the presence of each
other or through the use of videoconferencing, at a meeting
duly held at a time fixed by law, or by any by-law duly adopted
by such board of body, or at any duly adjourned meeting of
such meeting, or at any meeting duly held upon reasonable
notice to all of them, shall constitute a quorum and not less
than a majority of the whole number may perform and exercise
such power, authority or duty. For the purpose of this
provision the words 'whole number' shall be construed to mean
the total number which the board, commission, body or other
group of persons or officers would have were there no
vacancies and were none of the persons or officers disqualified
from acting."

Based upon the language quoted above, a public body cannot carry out its powers or duties
except by means of an affirmative vote of a majority of its total membership taken at a
meeting duly held upon reasonable notice to all of the members. Therefore, even if a
majority of the Board is present, but they convene without informing the other two members,
there would be no quorum, and the three would have no authority, in my view, to vote or
otherwise take action.

Third, you asked whether you must submit separate requests for each record sought
under the Freedom of Information Law. There is no statutory limitation on the number of
records that may be requested in a single application for records, and there is no requirement
that each record sought must be requested separately.

Fourth, if I understand the question accurately, you asked whether draft minutes may
be changed before a meeting and then later approved with the alteration. Pursuant to the
Village Law, §4-402, the village clerk has the duty to "act as clerk of the board of
trustees...and shall keep a record of their proceedings." Based on that provision, I believe
that the clerk is responsible for preparing minutes, and that the minutes that he or she
prepares can be amended or altered only at a meeting of the board of trustees.

Lastly, you referred to a meeting that "doesn't get noticed anywhere." In this regard,
the Open Meetings Law requires that notice be posted and given to the news media prior to
every meeting of a public body, such as a board of education. Specifically, §104 of that
statute provides 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. Although the Open Meetings Law
does not make reference to "special" or "emergency" meetings, 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.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Board of Trustees
Village Clerk