Mr. Robert E. Smith
20 Kingsbury Avenue
St. Johnsville, NY 13452
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, unless otherwise indicated..
Dear Mr. Smith:
I have received your letter of August 7 in which you raised a variety of issues pertaining to access to records of the Margaret Reaney Memorial Library and to meetings of its Board of Trustees and committees.
You described your first area of concern as follows:
"Committees of the Board, Investments, Museum, Personnel,
Fundraising and Planning do not announce their meeting dates,
times and locations to the public. These committees are
chaired by Trustees or the Director. With one or two exceptions, the committee members are all Trustees as well. At Board meetings, when it is divulged that a committee meeting has taken place, no written report is presented which would then be available under the Freedom of Information Law. Frequently, these committee meetings take place in restaurants at a table just large enough for committee members. It is very intimidating to try to attend and take notes, when the committee is sharing a pizza."
In this regard, I offer the following comments.
First, the Open Meetings Law is applicable to meetings of public bodies, and §102(2)
defines the phrase "public body" to mean:
"...any entity for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body."
Based on the foregoing, as a general matter, the Open Meetings Law pertains to governmental bodies. In addition, that statute, which is codified as Article 7 of the Public
Officers Law, is applicable to boards of trustees of public libraries pursuant to §260-a of the Education Law, which states that:
"Every meeting, including a special district meeting, of a board
of trustees of a public library system, cooperative library
system, public library or free association library, including
every committee meeting and subcommittee meeting of any
such board of trustees in cities having a population of one
million or more, shall be open to the general public. Such
meetings shall be held in conformity with and in pursuance to
the provisions of article seven of the public officers law.
Provided, however, and notwithstanding the provisions of subdivision one of section ninety-nine of the public officers law, public notice of the time and place of a meeting scheduled
at least two weeks prior thereto shall be given to the public and news media at least one week prior to such meeting."
Again, since Article 7 of the Public Officers Law is the Open Meetings Law, meetings of
boards of trustees of various libraries, including public libraries that are not-for-profit
corporations, must be conducted in accordance with that statute.
Based on the foregoing, it is clear that a library board of trustees is required to comply
with the Open Meetings Law. Whether the Margaret Reaney Memorial Library (the Library) could be characterized as a governmental entity is, in my opinion, somewhat unclear. In an effort to learn more of the matter, I contacted the Director of the Library, Ms. Dawn Capece. She indicated that the Library is a not-for-profit corporation. However, she added that the members of its Board of Trustees are designated by the governing body of the Village, its Board of Trustees, and that a substantial portion of the Library budget is derived from a school district tax levy. In view of those factors, I believe that the Library Board of Trustees is essentially governmental in nature and that it would constitute a "public body" subject to the Open Meetings Law, even if §260-a of the Education Law had not been enacted. Similarly, since other aspects of your inquiry pertain to access to records, the Library would also, in my opinion, be subject to the Freedom of Information Law. In a situation in which a government agency maintains significant control over a not-for-profit corporation, the state's highest court held that the not-for-for profit entity is an agency required to comply with the Freedom of Information Law [see Buffalo News v. Buffalo Enterprise Development Corp., 84 NY2d 488 (1994)].
With respect to the committees to which you referred, I believe that those consisting solely of Board members would be subject to the Open Meetings Law; the others would not.
Judicial decisions indicate generally that ad hoc entities consisting of persons other
than members of public bodies having no power to take final action fall outside the scope of
the Open Meetings Law. As stated in those decisions: "it has long been held that the mere
giving of advice, even about governmental matters is not itself a governmental function"
[Goodson-Todman Enterprises, Ltd. v. Town Board of Milan, 542 NYS 2d 373, 374, 151 AD 2d 642 (1989); Poughkeepsie Newspapers v. Mayor's Intergovernmental Task Force, 145 AD 2d 65, 67 (1989); see also New York Public Interest Research Group v. Governor's Advisory Commission, 507 NYS 2d 798, aff'd with no opinion, 135 AD 2d 1149, motion for leave to appeal denied, 71 NY 2d 964 (1988)]. Therefore, an advisory body, such as a citizens' advisory committee, would not in my opinion be subject to the Open Meetings Law, even if a member of the Board of Education or the administration participates.
However, when a committee consists solely of members of a public body, such as a
board of education, I believe that the Open Meetings Law is applicable. By way of
background, when the Open Meetings Law went into effect in 1977, questions consistently
arose with respect to the status of committees, subcommittees and similar bodies that had no
capacity to take final action, but rather merely the authority to advise. Those questions arose
due to the definition of "public body" as it appeared in the Open Meetings Law as it was
originally enacted. Perhaps the leading case on the subject also involved a situation in which
a governing body, a school board, designated committees consisting of less than a majority
of the total membership of the board. In Daily Gazette Co., Inc. v. North Colonie Board of
Education [67 AD 2d 803 (1978)], it was held that those advisory committees, which had no capacity to take final action, fell outside the scope of the definition of "public body".
Nevertheless, prior to its passage, the bill that became the Open Meetings Law was
debated on the floor of the Assembly. During that debate, questions were raised regarding
the status of "committees, subcommittees and other subgroups." In response to those questions, the sponsor stated that it was his intent that such entities be included within the
scope of the definition of "public body" (see Transcript of Assembly proceedings, May 20,
1976, pp. 6268-6270).
Due to the determination rendered in Daily Gazette, supra, which was in apparent
conflict with the stated intent of the sponsor of the legislation, a series of amendments to the
Open Meetings Law was enacted in 1979 and became effective on October 1 of that year.
Although the original definition made reference to entities that "transact" public business, the
current definition makes reference to entities that "conduct" public business. Moreover, the
definition makes specific reference to "committees, subcommittees and similar bodies" of a
In view of the amendments to the definition of "public body", I believe that any entity
consisting of two or more members of a public body, such as a committee or subcommittee
consisting of members of a public body, would fall within the requirements of the Open
Meetings Law, assuming that a committee discusses or conducts public business collectively
as a body [see Syracuse United Neighbors v. City of Syracuse, 80 AD 2d 984 (1981)].
Further, as a general matter, I believe that a quorum consists of a majority of the total
membership of a body (see e.g., General Construction Law, §41). Therefore, if, for example, the Board of Trustees consists of nine, its quorum would be five; in the case of a committee consisting of three, a quorum would be two.
When a committee is subject to the Open Meetings Law, I believe that it has the same
obligations regarding notice and openness, for example, as well as the same authority to
conduct executive sessions, as a governing body [see Glens Falls Newspapers, Inc. v. Solid Waste and Recycling Committee of the Warren County Board of Supervisors, 195 AD 2d 898 (1993)].
The Open Meetings Law requires that notice be posted and given to the news media prior to every meeting of a public body. Specifically, §104 of that statute provides that:
"1. Public notice of the time and place of a meeting scheduled
at least one week prior thereto shall be given to the news
media and shall be conspicuously posted in one or more
designated public locations at least seventy-two hours before each meeting.
2. Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.
3. The public notice provided for by this section shall not be construed to require publication as a legal notice."
Stated differently, if a meeting is scheduled at least a week in advance, notice of the time and
place must be given to the news media and to the public by means of posting in one or more
designated public locations, not less than seventy-two hours prior to the meeting. If a
meeting is scheduled less than a week an advance, again, notice of the time and place must
be given to the news media and posted in the same manner as described above, "to the extent practicable", at a reasonable time prior to the meeting. Although the Open Meetings Law does not make reference to "special" or "emergency" meetings, if, for example, there is a need to convene quickly, the notice requirements can generally be met by telephoning the local news media and by posting notice in one or more designated locations.
The primary requirement relating to a record of a meeting involves the preparation of minutes, and §106 of the Open Meetings Law 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."
Based on the foregoing, minutes need not consist of a verbatim account of everything that
was said; on the contrary, so long as the minutes include the kinds of information described
in §106, I believe that they would be appropriate and meet legal requirements. Further, if none of the events described in §106 occurs, technically, there would be no requirement that minutes be prepared.
With regard to the location of meetings, there is nothing in the Open Meetings Law
that specifies where meetings must be held. The only provision that deals somewhat directly
with the issue is §103(b), which states that public bodies must make or cause to made
reasonable efforts to hold meetings in locations that offer barrier-free access to physically
handicapped persons. Perhaps equally pertinent is §100 of the Open Meetings Law, the
Legislative Declaration, which 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 an 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. It is the only climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created it."
As such, the Open Meetings Law confers a right upon the public to attend and listen to the
deliberations of public bodies and to observe the performance of public officials who serve
on such bodies.
From my perspective, every provision of law, including the Open Meetings Law, should be implemented in a manner that gives reasonable effect to its intent. Whether a meeting is held on public or private property, to give reasonable effect to the law, I believe that meetings should be held in locations in which those likely interested in attending and observing the deliberative process have a reasonable opportunity to do so. Since people are expected to purchase food in a restaurant, that kind of site would, in my view, be inappropriate for conducting a meeting of a public body.
With regard to the designation of a "records access officer", §89(1) of the Freedom
of Information Law requires the Committee on Open Government to promulgate regulations
concerning the procedural implementation of that statute (21 NYCRR Part 1401). In turn,
§87(1) requires the governing body of an agency to adopt rules and regulations consistent
those promulgated by the Committee and with the Freedom of Information Law. Further,
§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."
Based on the foregoing, I believe that the records access officer has the duty of coordinating responses to requests. In addition, the regulations promulgated by the Committee on Open Government (21 NYCRR Part 1401), which govern the procedural aspects of the Law, state that:
"(a) The governing body of a public corporation or the head, chief executive or governing body of other agencies shall hear appeals or shall designate a person or body to hear appeals regarding denial of access to records under the Freedom of Information Law.
(b) Denial of access shall be in writing stating the reason
therefor and advising the person denied access of his or her
right to appeal to the person or body established to hear
appeals, and that person or body shall be identified by name, title, business address and business telephone number. The records access officer shall not be the appeals officer"
Lastly, the Freedom of Information Law provides direction concerning the time and
manner in which agencies must respond to requests. Specifically, §89(3) of the Freedom of
Information Law states in part that:
"Each entity subject to the provisions of this article, within
five business days of the receipt of a written request for a
record reasonably described, shall make such record available
to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date when such request will be granted or denied..."
While an agency must grant access to records, deny access or acknowledge the receipt
of a request within five business days, when such acknowledgement is given, there is no
precise time period within which an agency must grant or deny access to records. The time
needed to do so may be dependent upon the volume of a request, the possibility that other
requests have been made, the necessity to conduct legal research, the search and retrieval
techniques used to locate the records and the like. In short, when an agency acknowledges
the receipt of a request because more than five business days may be needed to grant or deny a request, so long as it provides an approximate date indicating when the request will be granted or denied, and that date is reasonable in view of the attendant circumstances, I believe that the agency would be acting in compliance with law.
In an effort to enhance compliance with and understanding of open government laws, a copy of this opinion will be forwarded to the Director of the Library.
I hope that I have been of assistance.
Robert J. Freeman
cc: Dawn Lamphere Capece