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December 28, 1993

 

 

Richard E. Scudellari, Co-leader
Tax Pac, Inc.
P.O. Box 188
Greenlawn, NY 11740-0188

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 Mr. Scudellari:

I have received your letter of November 25 and the materials
attached to it.

You described your efforts to obtain "Agenda Books" from the
Harborfields Central School District. Those documents are
apparently prepared by administrators and forwarded prior to
meetings to members of the Board of Education. You have raised the
following questions concerning access to Agenda Books and related
matters:

"A) Do the Agenda Books constitute the type
of records that are required to be made
available to the public under Section 2116 of
the Education Law?

B) If the Agenda Books contains [sic]
material prohibited by law for availability to
the public must an abridged copy with the
prohibited material expunged be made
available?

C) If the Agenda Book is, by policy, made
available to the Board members on the Friday
preceding the monthly Wednesday meeting, and
the district office receives a Freedom of
Information request for the Agenda Book 5 or
more days prior to that preceding Friday, does
such a request conform to the requirements of
the FOIL and should that Agenda Book be
required to be made available to the public?

D) Is the Board required to advertise and
post notice of board meetings at which the
items on the agenda are discussed and is the
Board required publish the minutes of such a
meeting? [You] have noted that minutes of
regular and special meetings usually being
with a motion to move to executive session to
discuss some item which should be
appropriately discussed in executive session.
However, [you] have not been able to find the
minutes of the meetings for the work sessions
where the Board purportedly discusses the
items contained in the Agenda Books that are
regularly unanimously passed without
discussion at the regular meeting which is
attended by the public. Is the Board
permitted to discuss these types of items in
executive session and not report on these
discussions?"

In this regard, I offer the following comments.

First, §2116 of the Education Law, which was enacted in 1947,
states that:

"The records, books and papers belonging or
appertaining to the office of any officer of a
school district are hereby declared to be the
property of such district and shall be open
for inspection by any qualified voter of the
district at all reasonable hours, and any such
voter may make copies thereof."

The current version of the Freedom of Information Law became
effective in 1978. In brief, 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 that statute.

In a case involving a statute enacted long before the Freedom
of Information Law that also provided for access to records with
virtually no exceptions, it was found that a literal interpretation
of such a provision would contrary to public policy. In responding
to a contention that §51 of the General Municipal Law requires that
all records of a municipality be made available, regardless of
their contents, the state's highest court, the Court of Appeals,
held in 1985 that:

"Such a result would nullify the FOIL
exemptions, which the Legislature - presumably
aware of General Municipal Law §51 at the time
it enacted FOIL - could not have intended. To
give effect to both statutes, the FOIL
exemptions must be read as having engrafted,
as a matter of public policy, certain
limitations on the disclosure of otherwise
accessible records" [Xerox Corporation v. Town
of Webster, 65 NY 131, 490 NYS 2d 488, 489
(1985)].

Therefore, when records or portions of records fall with exceptions
to rights of access appearing in the Freedom of Information Law,
they may be withheld, notwithstanding the breadth of §2116 of the
Education Law.

Second, although the Freedom of Information Law is based upon
a presumption of access, the contents of the records in question
serve as the factors relevant to an analysis of the extent to which
the records may be withheld or must be disclosed. In my view,
several of the grounds for denial may be relevant to such an
analysis.

As suggested by Mr. Harrington, the Assistant Superintendent
and Records Access Officer, records prepared by District staff and
forwarded to members of the Board would constitute intra-agency
materials that fall within the coverage of §87(2)(g) of the Freedom
of Information Law. That provision states that an agency may
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.

It is emphasized that the Court of Appeals, the State's
highest court has specified that the contents of intra-agency
materials determine the extent to which they may be available or
withheld, for it was held that:

"While the reports in principle may be exempt
from disclosure, on this record - which
contains only the barest description of them -
we cannot determine whether the documents in
fact fall wholly within the scope of FOIL's
exemption for 'intra-agency materials,' as
claimed by respondents. To the extent the
reports contain 'statistical or factual
tabulations or data' (Public Officers Law
section 87[2][g][i], or other material subject
to production, they should be redacted and
made available to the appellant" [Xerox Corp.
v. Town of Webster, 65 NY 2d 131, 133 (1985)].

Therefore, as indicated earlier, intra-agency materials may be
accessible or deniable in whole or in part, depending upon their
specific contents.

Also relevant may be §87(2)(b), which enables an agency to
withhold records or portions thereof which if disclosed would
result in an unwarranted invasion of privacy. That provision might
be applied with respect to a variety of matters relating to hiring,
evaluation or discipline of teachers or other staff, for example.

Section 87(2)(c) of the Freedom of Information Law permits an
agency to withhold records to the extent that disclosure "would
impair present or imminent contract awards or collective bargaining
negotiations". Items within an Agenda Book might in some instances
fall within that exception.

Section 87(2)(a) pertains to records that "are specifically
exempted from disclosure by state or federal statute". One such
statute is the Family Educational Rights and Privacy Act (20 U.S.C.
§1232g). In brief, that statute generally forbids a school
district from disclosing personally identifiable information
concerning students, unless the parents of students consent to
disclosure.

In short, while a blanket denial of Agenda Books may be
inconsistent with the Freedom of Information Law, there would
likely to be one or more grounds for denial that could
appropriately be cited withhold portions of those records.

Third, §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..."

In my opinion, when records are clearly accessible under the
Freedom of Information Law and can readily be located and
disclosed, an agency must disclose them within five business days
of its receipt of a request. However, as indicated above, if more
than that time is needed to locate records or to review them to
determine which portions must be disclosed or may be withheld, an
agency may acknowledge the receipt of the request and reasonably
extend the time in which it grants or denies access to the records
sought.

Lastly, you raised several issues relating to the Open
Meetings Law. In this regard, it is noted by way of background
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)].

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,
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, if a majority of
a board of education gathers to discuss school district business,
in their capacities as board members, any such gathering, in my
opinion, would constitute a "meeting" subject to the Open Meetings
Law.

Section 104 of the Open Meetings Law pertains to notice of
meetings and states 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."

Based on the foregoing, it is clear that notice of a meeting must
include reference to the "time and place" of a meeting. There is
no requirement that the notice include reference to the subject
matter to be discussed.

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. Consequently, 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 the
motion 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.

With respect to minutes, the Open Meetings Law requires that
minutes of meetings of public bodies be prepared and made
available. Specifically, §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. It is also clear in my view
that minutes need not consist of a verbatim account of what was
said at a meeting; similarly, there is no requirement that minutes
refer to every topic discussed or identify those who may have
spoken. Although a public body may choose to prepare expansive
minutes, at a minimum, minutes of open meetings must include
reference to all motions, proposals, resolutions and any other
matters upon which votes are taken. If those kinds of actions,
such as motions or votes, do not occur during work sessions,
technically, I do not believe that minutes must be prepared.

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. Nevertheless, various interpretations of the Education
Law, §1708(3), indicate that, except in situations in which action
during a closed session is permitted or required by statute, a
school board cannot take action during an executive session [see
United Teachers of Northport v. Northport Union Free School
District, 50 AD 2d 897 (1975); Kursch et al. v. Board of Education,
Union Free School District #1, Town of North Hempstead, Nassau
County, 7 AD 2d 922 (1959); Sanna v. Lindenhurst, 107 Misc. 2d 267,
modified 85 AD 2d 157, aff'd 58 NY 2d 626 (1982)]. Stated
differently, based upon judicial interpretations of the Education
Law, a school board generally cannot vote during an executive
session, except in rare circumstances in which a statute permits or
requires such a vote.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: Dr. Raymond Walters, Superintendent
Board of Education