October 4, 1994
Mr. John E. Anderson, Sr.
Box 130 E. RD-1
Angell Hill Road
Chatham, NY 12037
Dear Mr. Anderson:
I have received your letter of September 12. As a resident of the Town of Austerlitz, you wrote that there "are no office hours" for the elected and appointed Town officials. Consequently, you have asked whether the law requires that those officials "have days of the week when you can take a problem to them at Town Hall."
In this regard, the Committee on Open Government is authorized to provide advice concerning the Freedom of Information and Open Meetings Laws. Although those statutes and the issue that you raised pertain to the accountability of government, neither of those laws deals directly with your inquiry. Further, I know of no provision in the Town Law that would require town officials to establish office hours. Nevertheless, in an effort to assist you, I offer the following comments.
As inferred above, one vehicle for acquiring government information involves the use of the Freedom of Information Law to seek records. I point out that the Freedom of Information Law provides direction concerning the time and manner in which an agency must respond to a request. 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)].
Section 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 town board, to adopt rules and regulations consistent with the Law and the Committee's regulations.
Potentially relevant to your complaint is §1401.2 of the regulations, which 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."
Therefore, insofar as Town offices operate during regular business hours, I believe that the public should have the opportunity to request and review records during those hours. As indicated above, if there are no regular business hours, an appointment procedure must be devised. Further, I know of no provision that requires that town records be kept in town offices at all times, and it has been held that a clerk may maintain temporary possession of records at her home, so long as that person complies with the Freedom of Information Law [see Town of Northumberland v. Eastman, 493 NYS 2d 93 (1985)]. As such, when a request is made in advance, if there are no regular business hours, perhaps an appointment could be made to inspect the records in a timely manner, either at Town offices or at the home of the Clerk or a deputy.
Another vehicle for acquiring information about the Town pertains to the public's right to attend meetings under the Open Meetings Law. It is emphasized 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)]. Based upon the direction given by the courts, when a quorum of the Board gathers to discuss public 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 requires that every meeting be preceded by notice given to the news media and posted. That provision 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."
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.
Enclosed is "Your Right to Know", which describes the Freedom of Information and Open Meetings Laws in detail. I hope that it will be useful to you and that I have been of some assistance.
Robert J. Freeman
cc: Town Board