September 13, 1994
Hon. Robert C. Oaks
Member of the Assembly
Room 543 Legislative Office Bldg.
Albany, NY 12248
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.
Dear Assemblyman Oaks:
I have received your letter of September 1, which reached this office on September 7.
According to your letter and the correspondence attached to it, during a meeting of a public library board of trustees, a "preliminary set of by laws" was distributed to board members. Although copies of other records were made available to your constituent at the beginning of the meeting, her request for the preliminary by-laws was denied. She has asked whether the refusal to provide a copy of the preliminary by-laws at the meeting "was a violation of the Freedom of Information Law", and you have sought my opinion on the matter.
In this regard, I offer the following comments.
First, although tangential to your inquiry, I point out that the Open Meetings Law clearly provides the public with the right "to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy" (see Open Meetings Law, §100). However, the Law is silent with respect to of public participation. Consequently, by means of example, if a public body does not want to answer questions or permit the public to speak or otherwise participate at its meetings, I do not believe that it would be obliged to do so. On the other hand, a public body may choose to answer questions and permit public participation, and many do so. When a public body does permit the public to participate, I believe that it should do so based upon reasonable rules that treat members of the public equally.
Second, although an agency may respond to an oral request made under the Freedom of Information Law, §89(3) of that statute authorizes an agency to require that a request be made in writing. Further, while a board may choose to furnish information or records during a meeting, it may require that a request be made in accordance with its rules and regulations adopted under the Freedom of Information Law.
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 implementation of the Law (see 21 NYCRR Part 1401). In turn, §87(1) requires the governing body of a public corporation, i.e., a board of trustees, to adopt rules and regulations consistent with the Law and the Committee's regulations.
Section 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.
(b) The records access officer is responsible for assuring that agency personnel...
(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..."
In view of the foregoing, the records access officer has the "duty of coordinating agency response" to requests and assuring that agency personnel act appropriately in response to requests. Section 1401.4 of the regulations entitled "Hours for public inspection" states that:
"(a) Each agency shall accept requests for public access to records and produce records during all hours they are regularly open for business.
(b) In agencies which do not have daily regular business hours, a written procedure shall be established by which a person may arrange an appointment to inspect and copy records. Such procedure shall include the name, position, address and phone number of the party to be contacted for the purpose of making an appointment."
In sum, although the Board could have disclosed a copy of the preliminary by laws to your constituent during the meeting, I do not believe that it would have been obliged to do so. Rather, the Board could, in my opinion, require that an applicant request the records in writing during the time set forth in its rules and regulations.
Lastly, the Committee on Open Government has recognized that members of the public have at times been frustrated at meetings due to their inability to gain access to records discussed at meetings. Consequently, for several years the Committee has recommended legislation on the subject. This year, A.1508 was approved by the Assembly; the Senate companion, S.952, did not reach the Senate floor. The bill would amend §103 of the Open Meetings Law as follows:
"A record which is available pursuant to article six of this chapter, including any proposed resolution, law, rule, regulation, policy or any amendment thereto, that is scheduled to be presented and discussed by a public body at an open meeting shall be made available for review to the public upon request at lease seventy-two hours prior to such meeting, or as soon as practicable. Copies of such record shall be made available for a reasonable fee as determined in the same manner as provided in article six of this chapter."
If the legislation is enacted, the kind of record sought by your constituent would be among those that must be made available either prior to or during an open meeting. I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman