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June 10, 1993

 

 

Ms. June P. Shearer
10 Heather Heights
Hornell, N.Y. 14843

The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the facts presented in your correspondence,
unless otherwise indicated.

Dear Ms. Shearer:

I have received your letter of May 25, as well as related
materials concerning the implementation of the Freedom of
Information Law and the Open Meetings Law by the Town of
Hornellsville.

According to the correspondence, it appears that some people
who request records are required to do so in writing by completing
a request form, while others are not. You also wrote that certain
records do not exist, such as procedures pertaining to
implementation of the Freedom of Information Law, a subject matter
list, and minutes relating to executive sessions of the Assessment
Board of Review. In addition, as I understand your comments,
meetings scheduled less than a week in advance are not preceded by
posting. Further, you referred in a conversation to a closed
meeting held by three members of the Town Board without prior
public notice.

You have asked for a review of the issues described above. In
this regard, I offer the following comments.

By way of background, §89(1)(b)(iii) of the Freedom of
Information Law requires the Committee on Open Government to
promulgate regulations concerning the procedural aspects of the Law
(see 21 NYCRR Part 1401). In turn, §87(1)(a) of the Law states
that:

"the governing body of each public corporation
shall promulgate uniform rules and regulations
for all agencies in such public corporation
pursuant to such general rules and regulations
as may be promulgated by the committee on open
government in conformity with the provisions
of this article, pertaining to the
administration of this article."

In this instance, the governing body of a public corporation, the
Town Board, is required to promulgate appropriate rules and
regulations consistent with those adopted by the Committee on Open
Government and with the Freedom of Information Law.

The initial responsibility to deal with requests is borne by
an agency's records access officer, and the Committee's regulations
provide direction concerning the designation and duties of a
records access officer. Specifically, §1401.2 of the regulations
provides in relevant part that:

"(a) The governing body of a public
corporation and the head of an executive
agency or governing body of other agencies
shall be responsible for insuring compliance
with the regulations herein, and shall
designate one or more persons as records
access officer by name or by specific job
title and business address, who shall have the
duty of coordinating agency response to public
requests for access to records. The
designation of one or more records access
officers shall not be construed to prohibit
officials who have in the past been authorized
to make records or information available to
the public from continuing to do so."

As such, the Town Board has the ability to designate "one or more
persons as records access officer". Further, §1401.2(b) of the
regulations describes the duties of a records access officer,
including the duty to coordinate the agency's response to requests.
In most towns, the records access officer is the town clerk, for
that person, under §30 of the Town Law, is the legal custodian of
all town records.

Although an agency may require that a request may be made in
writing, it may accept oral requests [see Freedom of Information
Law, §89(3); regulations, §1401.5(a)]. In my view, agencies should
be consistent in treatment of requests. If a request for certain
records is required to be made in writing by one person, others, in
my opinion, should be required to do the same. However, when a
request is routine and requires no search, an agency can waive the
requirement of submitting a written request. For instance, if a
clerk's minute book is kept close at hand, and a person asks to
inspect the minutes, there may be no reason for making or requiring
a written request. In short, I believe that the treatment of
requests should be consistent.

It is also important to note that the Freedom of Information
Law provides direction concerning the time and manner in which an
agency must respond to requests. Specifically, §89(3) of the
Freedom of Information Law 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. In such
a circumstance, 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)].

Further, I do not believe that an agency can require that a
request be made on a prescribed form. To reiterate, the Freedom of
Information Law, §89(3), as well as the regulations promulgated by
the Committee (21 NYCRR 1401.5), which have the force of law and
govern the procedural aspects of the Law, require that an agency
respond to a request that reasonably describes the record sought
within five business days of the receipt of a request. Further,
the regulations indicate that "an agency may require that a request
be made in writing or may make records available upon oral request"
[21 NYCRR 1401.5(a)]. As such, neither the Law nor the regulations
refer to, require or authorize the use of standard forms.
Accordingly, it has consistently been advised that any written
request that reasonably describes the records sought should
suffice.

It has also been advised that a failure to complete a form
prescribed by an agency cannot serve to delay a response or deny a
request for records. A delay due to a failure to use a prescribed
form might result in an inconsistency with the time limitations
imposed by the Freedom of Information Law. For example, assume
that an individual, such as yourself in the situation that you
described, requests a record in writing from an agency and that the
agency responds by directing that a standard form must be
submitted. By the time the individual submits the form, and the
agency possesses and responds to the request, it is probable that
more than five business days would have elapsed, particularly if a
form is sent by mail and returned to the agency by mail.
Therefore, to the extent that an agency's response granting,
denying or acknowledging the receipt of a request is given more
than five business days following the initial receipt of the
written request, the agency, in my opinion, would have failed to
comply with the provisions of the Freedom of Information Law.

While the Law does not preclude an agency from developing a
standard form, as suggested earlier, I do not believe that a
failure to use such a form can be used to delay a response to a
written request for records reasonably described beyond the
statutory period. However, a standard form may, in my opinion, be
utilized so long as it does not prolong the time limitations
discussed above. For instance, a standard form could be completed
by a requester while his or her written request is timely processed
by the agency. In addition, an individual who appears at a
government office and makes an oral request for records could be
asked to complete the standard form as his or her written request.

In sum, it is my opinion that the use of standard forms is
inappropriate to the extent that is unnecessarily serves to delay
a response to or deny a request for records.

With respect to the subject matter list, §87(3) of the Freedom
of Information Law states in relevant part that:

"Each agency shall maintain...

c. a reasonably detailed current list by
subject matter, of all records in the
possession of the agency, whether or not
available under this article."

The "subject matter list" required to be maintained under §87(3)(c)
is not, in my opinion, required to identify each and every record
of an agency; rather I believe that it must refer, by category and
in reasonable detail, to the kinds of records maintained by an
agency. Further, the regulations promulgated by the Committee on
Open Government state that such a list should be sufficiently
detailed to enable an individual to identify a file category of the
record or records in which that person may be interested [21 NYCRR
1401.6(b)].

It has been suggested that the records retention and disposal
schedules developed by the State Archives and Records
Administration at the State Education Department may be used as a
substitute for the subject matter list. The town clerk, who serves
as the "records management officer" pursuant to §57.19 of the Arts
and Cultural Affairs Law, should be familiar with that document.

With regard to the Open Meetings Law, 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)].

It is noted 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, when a majority
of a public body gathers to discuss public business, any such
gathering, in my opinion, would constitute a "meeting" subject to
the Open Meetings Law.

Further, the Open Meetings Law requires that notice be given
to the news media and posted prior to every meeting. 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.
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.

I point out that every meeting must be convened as an open
meeting, and that §102(3) of the Open Meetings Law defines the
phrase "executive session" to mean a portion of an open meeting
during which the public may be excluded. As such, it is clear that
an executive session is not separate and distinct from an open
meeting, but rather that it is a part of an open meeting.
Moreover, the Open Meetings Law requires that a procedure be
accomplished, during an open meeting, before a public body may
enter into an executive session. Specifically, §105(1) states in
relevant part that:

"Upon a majority vote of its total membership,
taken in an open meeting pursuant to a motion
identifying the general area or areas of the
subject or subjects to be considered, a public
body may conduct an executive session for the
below enumerated purposes only..."

As such, a motion to conduct an executive session must include
reference to the subject or subjects to be discussed and it must be
carried by majority vote of a public body's membership before such
a session may validly be held. The ensuing provisions of §105(1)
specify and limit the subjects that may appropriately be considered
during an executive sessions.

The Open Meetings Law also includes direction concerning
minutes of meetings. Section 106 of that statute provides 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."

In view of the foregoing, it is clear in my opinion that minutes of
open meetings must be prepared and made available within two weeks
of the meetings to which they pertain.

I point out that, as a general rule, a public body may take
action during a properly convened executive session [see Open
Meetings Law, §105(1)]. If action is taken during an executive
session, minutes reflective of the action, the date and the vote
must be recorded in minutes pursuant to §106(2) of the Law. If no
action is taken, there is no requirement that minutes of the
executive session be prepared.

Lastly, while meetings of public bodies generally must be
conducted in public unless there is a basis for entry into
executive session, following public proceedings conducted by boards
of assessment review, I believe that their deliberations could be
characterized as "quasi-judicial proceedings" that would be exempt
from the Open Meetings Law pursuant to §108(1) of that statute. It
is emphasized, however, that even when the deliberations of such a
board may be outside the coverage of the Open Meetings Law, its
vote and other matters would not be exempt. As stated in Orange
County Publications v. City of Newburgh:

"there is a distinction between that portion
of a meeting...wherein the members
collectively weigh evidence taken during a
public hearing, apply the law and reach a
conclusion and that part of its proceedings in
which its decision is announced, the vote of
its members taken and all of its other regular
business is conducted. The latter is clearly
non-judicial and must be open to the public,
while the former is indeed judicial in nature,
as it affects the rights and liabilities of
individuals" [60 AD 2d 409, 418 (1978)].

Therefore, although an assessment board of review may deliberate in
private, based upon the decision cited above, the act of voting or
taking action must in my view occur during a meeting and be
referenced in minutes.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: John Clifford, Supervisor
Town Board