November 17, 1993
Ms. Ann Watson
1111 Laural Lane
Malta, NY 12020
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.
Dear Ms. Watson:
I have received your letters of October 25, as well as
correspondence relating to them.
In the first, you wrote that residents of an eighty-eight home
subdivision in the Town of Malta have raised questions concerning
the Building Department's inspection procedures, and that you have
encountered difficulties in your attempts to view building permit
files. You have sought assistance in the matter, and in this
regard, I offer the following comments.
First, 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.
While the records in which you are interested, as I interpret
your comments, fall within the scope of one of the grounds for
denial, that provision, due to its structure, often requires
disclosure. I direct your attention to §87(2)(g) of the Freedom of
Information Law, which enables an agency to withhold records that:
"are inter-agency or intra-agency materials
which are not:
i. statistical or factual or data;
ii. instructions to staff that affect the
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. Therefore, insofar as the records sought
consist of factual information, for example, I believe that they
would be available under §87(2)(g)(i). Those consisting of
procedures carried out by the Building Department staff would
likely consist of instructions to staff that affect the public
accessible under §87(2)(g)(ii) or the agency's policy, which would
be available under §87(2)(g)(iii).
I point out, too, that it had been claimed in the past that
building code inspection records could be withheld on the ground
that they involved investigatory files compiled for law enforcement
purposes. Nevertheless, in one of the first decisions rendered
under the Freedom of Information Law, which at the time was not as
expansive in terms of rights of access as the current law, the
files of a building code enforcement agency, including records
indicating code violations, were found to be accessible [see Young
v. Town of Huntington, 388 NYS 2d 978 (1976)].
Second, when an applicant seeks copies of accessible records,
as you did in your request of October 14, an agency may charge up
to twenty-five cents per photocopy [see Freedom of Information Law,
§87(1)(b)(iii)]. If an applicant seeks to inspect accessible
records, no fee may be charged.
Third, the Freedom of Information Law provides direction
concerning the time and manner in which agencies 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)].
The other letter pertains to a meeting of the Malta Town Board
on October 4. You wrote that you attended the meeting until it was
adjourned at 8:45 p.m. Later that night, you attempted to contact
one of the Board members. However, you were informed by the
member's wife that he "was in executive session at the town hall
still." Soon after, you and others went to the Town Hall where, as
I understand your comments, you found four members of the Town
Board in a "small meeting room and a closed door."
In my opinion, if the Board members met to discuss public
business or continued their original meeting after their official
adjournment at 8:45, they failed to comply with the Open Meetings
It is emphasized that the definition of "meeting" [see
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)].
I point out 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,
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
Based upon the direction given by the courts, if a majority of
the Board gathered to discuss Town business, in their capacities as
Board members, any such gathering, in my opinion, would have
constituted a "meeting" subject to the Open Meetings Law.
Lastly, §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 session. Therefore, a public body may not
conduct an executive session to discuss the subject of its choice.
In an effort to enhance understanding of and compliance with
the Freedom of Information Law and the Open Meetings Law, copies of
this opinion will be forwarded to Town officials.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Town Clerk