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October 20, 1995

 

 

Mr. and Mrs. Robert J. Brignola
912 Third Avenue
Troy, NY 12182

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. and Mrs. Brignola:

I have received your letter of September 19, as well as a variety of materials relating to it.

You have raised a number of issues pertaining to your attempts to acquire information from the Town of Westport, and I will attempt to address them in an effort to provide guidance and assistance.

The initial area of concern involves a request for a transcript of a meeting conducted by the Town Board. In this regard, I know of no requirement that a public body, such as a town board, prepare a transcript of its meetings. It is noted that the Open Meetings Law provides what might be characterized as minimum requirements concerning the contents of minutes. Specifically, §106 of that statute 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."

Based upon the foregoing, although minutes must be prepared and made available within two weeks, it is clear that minutes need not consist of a verbatim transcript of a meeting or include reference to every comment that was made. If the Town has prepared a transcript of a meeting, I believe that it would be available under the Freedom of Information Law. In brief, that statute 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. From my perspective, since any member of the public may attend a meeting, there would be no basis for withholding a transcript. Nevertheless, the Freedom of Information Law pertains to existing records. Section 89(3) of that statute states in part that an agency need not create a record in response to a request. Therefore, if no transcript exists, the Town would not be obliged to prepare a transcript on your behalf.

It is possible, too, that the Town tape records its meetings. If a tape recording of the meeting in which you are interested exists, I believe that it would be accessible [see Zaleski v. Hicksville Union Free School District, Board of Education, Sup. Ct., Nassau Cty., NYLJ, Dec. 27, 1978]. Upon receipt of a tape recording of an open meeting, you could prepare a transcript on your own initiative or perhaps retain a person to do so.

In a related vein, for future reference, I point out that the courts have determined that any person may use a portable, audio cassette recorder at an open meeting of a public body, so long as the device is used in a non-disruptive manner [see Mitchell v. Board of Education of the Garden City Union Free School District, 113 AD 2d 924 (1985)]. Should you choose to tape record a meeting, your own recording could be replayed or transcribed.

A second issue involves a request to have an interpreter for the deaf present at a Town Board meeting. In conjunction with your request, it appears that the Town arranged for an interpreter to be present at its meeting of August 8. You alleged, however, that you were not informed that the interpreter would be present. There is nothing in the Open Meetings Law, nor is there any other statute of which I am aware, that would require a public body to ensure that an interpreter is present at a meeting. Consequently, while a member of the public may request that a public body gain the services of an interpreter, I know of no requirement that a public body would be obliged to do so. As suggested earlier, if there is no interpreter present, by means of a tape recording, the substance of a meeting can be made known by preparing a transcript or by means of other methods.

It is suggested that you employ the Freedom of Information Law as a means of acquiring information from the Town. I point out, however, that the title of the statute may be somewhat misleading, for it does not require government officials to provide information by answering questions, for example. Certainly they may do so; nevertheless, the Freedom of Information Law is a vehicle under which members of the public may request records and inspect and copy those that are accessible in accordance with the Law's provisions. As stated earlier, the Freedom of Information Law pertains to existing records. Again, §89(3) of that statute provides in part that an agency is not required to create a record in response to a request.

For purposes of illustration and to relate the preceding remarks to your letter of September 19 addressed to the Town Supervisor, rather than seeking answers to questions, it is recommended that you request existing records. For instance, instead of asking "what testing has been done of our water system", you might request records reflective of tests conducted pertaining to your water during a certain period.

Section 89(3) also states that an applicant must "reasonably describe" the records sought. Therefore, a request should include sufficient detail to enable agency staff to locate and identify the records of your interest.

Lastly, pursuant to regulations promulgated by the Committee on Open Government, each agency is required to designate one or more persons as "records access officer" (21 NYCRR §1401.2). The records access officer has the duty of coordinating an agency's response to requests for records, and a request should ordinarily be directed to that person. While I am unaware of the identity of the records access officer in the Town of Westport, in most towns, the town clerk is so designated. The clerk, by law, is the custodian of town records and a town's records management officer.

Enclosed is "Your Right to Know", which describes the Freedom of Information and Open Meetings Laws and may be useful to you. I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Town Board
Hon. Donald L. McIntyre, Supervisor
Town Clerk