January 9, 1996
Mr. Robert E. Croissant
34 Forestwood Drive
Woodstock, NY 12498
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. Croissant:
As you are aware, I have received your letter of December 19 and the materials attached to it.
You have requested an advisory opinion concerning your efforts to gain access to minutes of meetings of the Woodstock Public Access Cable Committee and the Town of Woodstock. Your inquiry was precipitated by action taken by the Committee to suspend your TV programming time during an executive session. Although minutes of some meetings have been made available, others have not yet been disclosed. Further, when you sought minutes of executive sessions, particularly the session in which action was taken pertaining to you, you were informed that those minutes consist of "privileged information." You also indicated that the members of the Committee "never mention at any of the public meetings their reasons for going into executive session."
In this regard, I offer the following comments.
First, based upon the "Plan for the Operation of the Woodstock Public Access Station", it is clear that the Woodstock Public Access Committee is a public body required to comply with the Open Meetings Law and that its records are subject to the Freedom of Information Law. In brief, the five members of the Committee are appointed by the Town Board, and the Chair of the Committee and the Station Manager are also appointed by the Town Board. Moreover, the Plan specifies that the Committee is obligated to conduct its meetings "under the requirements of the open meetings law..."
Second, in my view, the extent to which executive sessions under the circumstances described in the correspondence could justifiably have been held is questionable. As a general matter, the Open Meetings Law is based upon a presumption of openness. Meetings of public bodies must be conducted in public, except to the extent that an executive session may be held in accordance with paragraphs (a) through (h) of §105(1) of the Law. Section 105(1) states in relevant part that:
"Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only, provided, however, that no action by formal vote shall be taken to appropriate public moneys..."
Based on the foregoing, a public body must indicate, during an open meeting, by means of a motion, the subject or subjects it intends to consider in private. Further, a public body cannot enter into an executive session to discuss the subject of its choice; on the contrary, the grounds for entry into executive session are specified and limited.
The only basis for entry into executive session that might have applied, §105(1)(f), permits a public body to conduct an executive session to discuss:
"the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular or corporation..."
On the basis of the materials that you provided, it is unclear whether any of the subjects described in §105(1)(f) were discussed. Only to the extent that the language of that provision applied could an executive session have properly been withheld. Any other aspect of the discussion in my view should have occurred during an open meeting.
Third, §106 of the Open Meetings Law pertains to minutes, and subdivision (2) of that provision deals with minutes of executive sessions and states that:
"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.
In addition, subdivision (3) of §106 provides 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."
Based on the foregoing, minutes of open meetings must be prepared and made available within two weeks, and when a public body takes action during an executive session, minutes indicating the nature of the action taken, the date, and the vote of each member must be prepared within one week and made available to the extent required by the Freedom of Information Law. It is noted that if a public body merely discusses an issue or issues during an executive session but takes no action, there is no requirement that minutes of the executive session be prepared.
If minutes or notes are prepared concerning an executive session even when there is no requirement to do so, any such documents would fall within the coverage of the Freedom of Information Law. It is noted that §86(4) of the statute defines the term "record" broadly to mean:
"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."
Based upon the foregoing any notes or minutes that are prepared would constitute "records" subject to rights conferred by the Freedom of Information Law.
This is not to suggest that all such records would be available. As a general matter, 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. Therefore, the specific contents of the records would determine the extent to which records are available or deniable.
With regard to a record of how each member voted, I direct your attention to §87(3)(a) of the Freedom of Information Law. That provision states that: "Each agency shall maintain:
(a) a record of the final vote of each member in every agency proceeding in which the member votes..."
Based upon the foregoing, when a final vote is taken by an "agency", which is defined to include a municipal committee [see §86(3)], a record must be prepared that indicates the manner in which each member who voted cast his or her vote. Ordinarily, records of votes will appear in minutes.
In terms of the rationale of §87(3)(a), I believe that the State Legislature in precluding secret ballot voting sought to ensure that the public has the right to know how its representatives may have voted individually with respect to particular issues. Although the Open Meetings Law does not refer specifically to the manner in which votes are taken or recorded, I believe that the thrust of §87(3)(a) of the Freedom of Information Law is consistent with the Legislative Declaration that appears at the beginning of the Open Meetings Law and states that:
"it is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants."
I point out that in an Appellate Division decision, it was found that "The use of a secret ballot for voting purposes was improper." In so holding, the Court stated that: "When action is taken by formal vote at open or executive sessions, the Freedom of Information Law and the Open Meetings Law both require open voting and a record of the manner in which each member voted [Public Officers Law §87[a]; §106, " Smithson v. Ilion Housing Authority, 130 AD 2d 965, 967 (1987)].
In an effort to enhance compliance with and understanding of applicable law, copies of this opinion will be sent to the Committee, the Town Supervisor and the Town Clerk. I hope that I have been of some assistance.
Robert J. Freeman
cc: Woodstock Public Access Committee
Hon. John Mower, Town Supervisor
Hon. Kathy Anderson, Town Clerk