October 14, 1994
Mr. Leslie A. Miller
2076 S. Maple Avenue
Ashville, NY 14710-9610
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 Mr. Miller:
As you are aware, your letter of September 7 addressed to Peter Sullivan, Assistant Attorney General, has been forwarded to the Committee on Open Government. The Committee, a unit of the Department of State, is authorized to provide advice concerning the Freedom of Information and Open Meetings Laws.
In brief, your letter and related materials pertain to the inability of the public to obtain minutes of meetings of the Town of Ripley Planning Board. The clerk of the Board has apparently refused to release the minutes, notwithstanding requests for those records by members of the public, the news media and the Chairman of the Planning Board. In this regard, I offer the following comments.
First, the Open Meetings Law requires that minutes of meetings be prepared and made available in accordance with §106 of that statute. That section states 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 that minutes must be prepared and made available within two weeks of the meetings to which they pertain.
I point out that 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 have been 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.
Second, §30 of the Town Law states in part that the town clerk: "Shall have the custody of all the records, books and papers of the town". Therefore, even though Planning Board minutes and other records may not be in the physical possession of the clerk, the clerk nonetheless would have legal custody of the records. Additionally, pursuant to the Local Government Records Law (Article 57-A, Arts and Cultural Affairs Law), the town clerk is the "records management officer," and §57.25 of the Arts and Cultural Affairs Law states in part that it is the responsibility of every local officer "to cooperate with the local government's records management officer on programs for the orderly and efficient management of records...".
Third, in a related vein, §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."
In this instance, the governing body of a public corporation, the Town Board, is required to promulgate appropriate rules and regulations 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."
As such, the Town Board has the ability to designate "one or more persons as records access officer". Further, §1401.2(b) of the regulations describes the duties of a records access officer, including the duty to coordinate the agency's response to requests. In most towns, the town clerk has been designated as records access officer. If that is so in this instance, I believe that the town clerk has the authority to make initial determinations to grant or deny access to records in response to requests made under the Freedom of Information Law. If a person other than the clerk has been designated records access officer, that person would have the same authority and responsibility. In the context of the problem that you have encountered, I believe that the records access officer would have the authority either to acquire the minutes for the purpose of responding to a request or directing the Planning Board's secretary to disclose the records as required by law.
In an effort to enhance compliance with the Freedom of Information and Open Meetings Laws, 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