Mr. Andrew V. Lalonde
City of Auburn
Memorial City Hall
24 South Street
Auburn, NY 13021-3832
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. Lalonde:
I have received your letter of May 22 in which you referred to a conversation that we had in the middle of May, and you asked that I confirm in writing your understanding of requirements relating to the Open Meetings Law. You offered three statements for my review.
The first is as follows:
"1. Minutes are governed by Section 106 of the Public Officers Law. Pursuant to subsection (3) thereof, they shall be made available to the public within ten (10) days of the meeting. When asked, you stated a violation of this provision does not per se invalidate any decision made at a meeting when the minutes are not filed in a timely basis."
In this regard, subdivision (3) of §106 of the Open Meetings Law states that:
"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."
As such, a public body has two weeks from a meeting to prepare minutes and make them available, not ten days as you suggested in your letter. I know of no provision of law or judicial decision indicating that a failure to prepare appropriate minutes within the requisite time serves to invalidate a decision made at a meeting of a public body.
You second statement is:
"2. Official minutes of a meeting of a body governed by the Open Meetings Law do not, under State law, need to be approved by that body to become valid."
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 not 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.
The remaining statement is as follows:
"3. The notes of a meeting do not constitute official minutes of that meeting. It is understood that they reflect the secretary's draft of what occurred in a meeting and serve as a basis for the drafting of the formal minutes for that meeting. It is understood that the notes of the meeting can, however, be obtained under the Freedom of Information Law."
From my perspective, notes of a meeting do not constitute the minutes of meeting but rather serve as a basis for preparing minutes. I point out for purposes of analogy that in an opinion rendered by the State Comptroller, it was found that, although tape recordings may be used as an aid in compiling minutes, they do not constitute the "official record" of a meeting (1978 Op. St. Compt. File 280).
With respect to access to the notes, I believe that they constitute "records" as defined by the Freedom of Information Law [see §86(4)]. As you are aware, the Freedom of Information Law is 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. In my view, notes could be characterized as intra-agency materials that fall within the scope of §87(2)(g). That provision enables an agency to withhold records that:
"are inter-agency or intra-agency materials which are not:
i. statistical or factual tabulations or data;
ii. instructions to staff that affect the public;
iii. final agency policy or determinations; or
iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."
I point out that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.
Assuming that minutes consist merely of a factual rendition of what transpired at a meeting, I believe that they would be available. Further, it was held years ago that notes of a meeting consisting of factual information were required to be disclosed [Warder v. Board of Regents, 410 NYS 2d 742 (1978)].
I hope that I have been of some assistance.
Robert J. Freeman