January 24, 2003
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
I have received your letter of December 30 and the materials attached to it. Having reviewed their contents, which in some instances are conflicting, I offer the following comments.
First, the Open Meetings Law contains direction concerning minutes of meetings and
provides what might be viewed as minimum requirements pertaining to their contents. Specifically, §106 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."
In view of the foregoing, as a general rule, a public body may take action during a properly convened executive session [see Open Meetings Law, §105(1)]. If action is taken during an executive session, minutes reflective of the action, the date and the vote must generally be recorded in minutes pursuant to §106(2) of the Law. If no action is taken, there is no requirement that minutes of the executive session be prepared.
Second, it is emphasized that minutes of executive sessions need not include information that may be withheld under the Freedom of Information Law. From my perspective, when a public body makes a final determination during an executive session, that determination will, in most instances, be public. For example, although a discussion to hire or fire a particular employee could clearly be discussed during an executive session [see Open Meetings Law, §105(1)(f), a determination to hire or fire that person would be recorded in minutes and would be available to the public under the Freedom of Information Law. On other hand, if a public body votes to initiate a disciplinary proceeding against a public employee, minutes reflective of its action would not have include reference to or identify the person, for the Freedom of Information Law authorizes an agency to withhold records to the extent that disclosure would result in an unwarranted personal privacy [see Freedom of Information Law, §87(2)(b)].
In the context of the matter as I understand it, §87(2)(e) of the Freedom of Information Law may have been pertinent. That provision permits an agency, such as a town, to withhold records that:
"are compiled for law enforcement purposes and which if disclosed would:
i. interfere with law enforcement investigation or judicial proceedings'
ii. deprive a person of a right to a fair trial or impartial adjudication;
iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or
iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures;"
If, for example, disclosure of action taken by the Town Board, if indeed action was taken, would
have interfered with an investigation, I do not believe that the minutes would have to have included that information.
Lastly, with respect to rights of access to records of the investigation, since I am unaware of
the specific contents of the records in question, I do not believe that I can offer comments additional
to those appearing in the letter addressed to you on December 23.
I hope that I have been of assistance.
Robert J. Freeman