Ms. Lauren Stanforth
123 W. State Street
Ithaca, NY 14850
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
Dear Ms. Stanforth:
I have received your letter of June 19 in which you sought a "judgment" concerning
the propriety of publication of a legal notice by a town in "what appears to be a pennysaver
and not a newspaper." You referred specifically to a legal notice relating to a report of a
fiscal examination published pursuant to §35 of the General Municipal Law.
In this regard, it is emphasized that the Committee on Open Government is not empowered to render a "judgment" that is binding; on the contrary, the Committee is authorized to issue advisory opinions concerning matters involving open government.
While your inquiry does not relate directly to the Open Meetings Law, I believe that
the following remarks will be pertinent to the implementation of that statute as well as the
situation to which you referred.
First, in most situations in which there is a requirement that a legal notice be
published, publication must be in a newspaper of general circulation in the municipality.
Under §35 of the General Municipal Law, for example, notice must be published "in the
official newspaper, or if there be no official newspaper, in a newspaper having general
circulation in the municipal corporation" (i.e., the town, village, city, school district, etc.).
Second, not every publication that is distributed and contains news is a newspaper.
§79-h(a)(1) of the Civil Rights Law defines the term "newspaper" to mean:
"‘Newspaper' shall mean a paper that is printed and distributed ordinarily not less frequently than once a week, and has done so for at least one year, and that contains news, articles of opinion (as editorials), features, advertising, or other matter regarded as of current interest, has a paid circulation and has been entered at [so in original] United States post-office as second-class matter."
Based on the foregoing, there must be a "paid circulation" to be a newspaper. If a publication is circulated or mailed at no charge to recipients, I do not believe that it would constitute a "newspaper" or, therefore, that a legal notice could be published in that kind of publication.
I hope that I have been of assistance.
Robert J. Freeman
cc: Town Board, Town of Groton