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  June 29, 1994

 

 

Ms. Lynne A. Eckardt Maple Road Brewster, NY 10509

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. Eckardt:

I have received your letter of June 9 in which you raised a series of issues relating to the Brewster Public Library.

You wrote that until recently, the director of the Library was its records access officer. However, at a meeting held on June 6, on the advice of the town attorney, the "Library Board itself" became the records access officer. You added that "[n]o information, including the minutes, could be looked at without first filing a Freedom of Information form which a member of the Board would then approve or disapprove." No particular member of the Board was designated as records access officer, and no vote was taken on the matter. In addition, you enclosed a copy of memorandum sent to the library director by the Board of Trustees on June 8 which includes the following statements of policy:

"1. Request for copies of the minutes for the meetings of the Board of Trustees.

Written request to be prepared which will be approved in writing by a member of the library staff.

2. Request for copies of all other library documents.

Written request to be prepared which will be reviewed and approved by a member of the Board of Trustees."

When and where the policy was adopted is, from your perspective, "unclear."

You have sought my opinion on the matter. In this regard, I offer the following comments.

First, 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."

Based on information provided by Library staff, it appears that the Library is, in essence, a department of the Town government. The members of the Library Board of Trustees are appointed by the Town Board, and it is my understanding that the Library functions as a unit within the Town government. If that is so, the governing body of a public corporation, the Town of Brewster, is the Town Board, and I believe that the Board would be required to promulgate appropriate rules and regulations applicable to Town government, including the Library, 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."

In addition, §1401.2(b) of the regulations describes the duties of a records access officer and states in part that:

"The records access Officer is responsible for assuring that agency personnel:

(1) Maintain an up-to-date subject matter list. (2) Assist the requester in identifying requested records, if necessary. (3) Upon locating the records, take one of the following actions: (i) make records promptly available for inspection; or (ii) deny access to the records in whole or in part and explain in writing the reasons therefor. (4) Upon request for copies of records: (i) make a copy available upon payment or offer to pay established fees, if any; or (ii) permit the requester to copy those records. (5) Upon request, certify that a record is a true copy. (6) Upon failure to locate the records, certify that: (i) the agency is not the custodian for such records; or (ii) the records of which the agency is a custodian cannot be found after diligent search."

Whether the Town Board or perhaps the Library Board of Trustees has the authority to designate the records access officer, based upon the provisions cited above, it is inappropriate in my view for the Board of Trustees to serve as records access officer, particularly since the duties to be performed in that role may be carried out by an unspecified Board member. Again, the regulations state that a records access officer shall be designated "by name or by specific job title."

Second, I do not believe that an agency can require that a request be made on a prescribed form. 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. Third, the Open Meetings Law provides guidance concerning minutes, their contents and the time within which they must 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.

Further, there is nothing in the Open Meetings Law or any other statute of which I am aware that requires that minutes be approved. Nevertheless, as a matter of practice or policy, many public bodies approve minutes of their meetings. In the event that minutes have been approved, to comply with the Open Meetings Law, it has consistently been advised that minutes be prepared and made available within two weeks, and that if the minutes have not been approved, they may be marked "unapproved", "draft" or "non-final", for example. By so doing within the requisite time limitations, the public can generally know what transpired at a meeting; concurrently, the public is effectively notified that the minutes are subject to change. If minutes are prepared within less than two weeks, I believe that those unapproved minutes would be available as soon as they exist, and that they may be marked in the manner described above.

Based on the preceding remarks, there would appear to be no valid basis for requiring that request for minutes be approved.

Lastly, with regard to the time or event at which a policy was changed, it is noted that the definition of "meeting" 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).

Based upon the direction given by the courts, if a majority of a public body gathers to discuss public business, any such gathering, in my opinion, would ordinarily constitute a "meeting" subject to the Open Meetings Law.

In order to take action, I believe that a meeting must be held by a quorum of a public body. Relevant in my view is §41 of the General Construction Law, which provides guidance concerning quorum and voting requirements. 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, 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."

In view of the language quoted above, a public body, such as a town board or a public library board of trustees, 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.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman Executive Director

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cc: Library Board of Trustees
Town Board
Town Attorney
Paulette Sullivan, Assistant Director, Brewster Public Library