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December 12, 1994

 

 

Mr. David Porter
546 Albany Post Road
New Paltz, NY 12561

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. Porter:

I have received your letter of October 31 and the materials attached to it.

According to your letter, you requested from the Town of New Paltz Planning Board copies of "all DEIS material submitted by a private developer...as part of the SEQR process for its proposed shopping mall..." Although the Town Clerk is the Town's designated records access officer, the Chairman of the Planning Board responded and indicated that he "will not permit the release of such material until the Board officially decides that it is 'complete' for review and comments by the public as part of the SEQR process." Since that process could take several months, you submitted a request to the Town Clerk. She informed you subsequently that the Chairman of the Planning Board refused to turn the material over to her in order that she could appropriately respond to your request. Similarly, you wrote that requests for minutes of Planning Board meetings, some of which were held months ago, have been denied until the minutes are approved. You also questioned your right to obtain copies of tape recordings of the meetings in question.

In this regard, I offer the following comments.

First, the records submitted by the developer, although in the physical custody of the Chairman of the Planning Board, are not in his legal custody. The Town Clerk, pursuant to §30 of the Town Law, is the legal custodian of all Town records. Therefore, even though she does not have physical possession of the records sought, I believe that she has legal custody of the records.

Second, 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."

In this instance, the governing board of a public corporation, the Town of New Paltz, is the Town Board, and I believe that the 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 attachments to your letter indicate that the Board has done so.

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 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."

Since the Town Clerk is the Town's designated records access officer, she has the duty of coordinating the Town's response to requests for records. Therefore, at her direction, I believe that the Chairman of the Planning Board must either turn the records over to the Clerk or disclose the records to the extent ordered by the Clerk.

Third, the Freedom of Information Law pertains to all agency records, and §86(4) of the Law defines the term "record" expansively to mean:

"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

Since the Chairman acquired the materials in question in his capacity as a Town official, I believe that the materials clearly constitute "records" subject to rights conferred by the Freedom of Information Law.

With respect to rights of access, the Freedom of Information Law 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 the Law. From my perspective, the records submitted by the developer must be made available, for none of the grounds for denial would appear to be applicable.

It is noted, too, that it has been held that tape recordings of meetings of public bodies constitute "records" that fall within the coverage of the Freedom of Information Law, and, assuming that the tapes involve open meetings, they must be disclosed (see Zaleski v. Hicksville Union Free School District, Board of Education of Hicksville Union Free School, Sup. Ct., Nassau County, NYLJ, Dec. 27, 1978).

Lastly, 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.

I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Town Board
Mae DeMaria, Town Clerk
Leon Dener, Planning Board Chairman