October 2, 2009
FROM: Robert J. Freeman, Executive Director
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.
I have received your communication addressed to Ms. Mercer of this office and apologize for typographical errors found in the response to your earlier correspondence.
You have sought clarification concerning two issues.
First, as I understand the Open Meetings Law, it is possible that meetings might be held during which no event required to be referenced in minutes occurs. In those instances, although it may be appropriate to prepare a record indicating that a meeting was held, in a technical sense, if none of the events described in §106 occurred, I do not believe that there would be an obligation to prepare minutes.
And second, when a town provides the equipment necessary to make records available in a certain form or format, but a clerk does not have the expertise to take advantage of that capability, you asked whether a town board may require the clerk, “if necessary, to accept its assistance for conversion to other formats.” That issue, in my view, does not deal with the Freedom of Information Law as much as it involves the authority of a town board as the governing body of the municipality. Because I am not an expert on that subject, I cannot answer. However, I believe that the language of the Freedom of Information Law makes clear that when an agency, in consideration of its equipment, has the ability to make records available in the form or storage medium of an applicant’s choice, the agency must do so. As stated in §87(5)(a): “an agency shall provide records on the medium requested by a person, if the agency can reasonably make such copy...” Similarly, in a provision concerning fees for reproducing records and determining the actual cost of doing so, §87(1)(c)(iii) states that an agency may include:
“the actual cost to the agency of engaging an outside professional service to prepare a copy of a record, but only when an agency’s technology equipment is inadequate to prepare a copy...”
Therefore, when an agency does have the “technology equipment” adequate to reproduce a record, I believe that it must develop the expertise to use the equipment in a manner consistent with the requirements imposed by the Freedom of Information Law.
I hope that I have been of assistance.