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OML-AO-3614
April 3, 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 facts presented in your correspondence.

Dear

As you are aware, I have received your correspondence concerning access to the meetings, records and related activities of the State Board of Elections.

In one of your letters, you referred to the "miss-use [sic] of executive sessions" by the Board. Without additional information concerning the nature of or basis for entry into the executive sessions, I cannot offer specific guidance. However, as a general matter, it is emphasized that every meeting of a public body, such as the Board, must be convened as an open meeting, and that §102(3) of the Open Meetings Law defines the phrase "executive session" to mean a portion of an open meeting during which the public may be excluded. As such, it is clear that an executive session is not separate and distinct from an open meeting, but rather that it is a part of an open meeting. Moreover, the Open Meetings Law requires that a procedure be accomplished, during an open
meeting, before a public body may enter into an executive session. Specifically, §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..."

Based on the foregoing, a motion to conduct an executive session must include reference to the subject or subjects to be discussed and it must be carried by majority vote of a public body's membership before such a session may validly be held. The ensuing provisions of §105(1) specify and limit the subjects that may appropriately be considered during an executive session. Consequently, a public body may not conduct an executive session to discuss the subject of its choice.

In another letter, you referred specifically to a federal statute, the "Help America Vote Act" (HAVA). As I understand the legislation, it requires each state to designate a HAVA task force charged with duty to offer advice and recommendations designed to enhance participation in the electoral process. If my understanding of the legislation is accurate, while the HAVA task force may hold its meetings open to the public, it would not be required to do so by the Open Meetings Law. Based on a decision rendered by the State's highest court, the Court of Appeals, an entity created pursuant to federal law would not be subject to the New York Open Meetings Law. The decision dealt with a "laboratory animal use committee" (LAUC) required to be established pursuant to
federal law and instituted at the State University at Stony Brook, and it was determined that the entity in question fell beyond the scope of the Open Meetings Law. That statute pertains to meetings of public bodies, and the Court cited §102(2), which 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."

Following its reference to the definition, the Court found that:"It is thus evident that the Open Meetings Law excludes Federal bodies from its ambit.

"The LAUC's constituency, powers and functions derive solely from Federal law and regulations. Thus, even if it could be characterized as a governmental entity, it is at most a Federal body that is not covered under the Open Meetings Law" [ASPCA v. Board of
Trustees of the State University of New York, 79 NY 2d 927, 929 (1992)].

Assuming that the HAVA task force is a creation of federal law, again, it would not constitute a"public body" required to comply with the Open Meetings Law. This not to suggest that it cannot hold open meetings, but rather that it is not required by the Open Meetings Law to do so.

Since you referred to the Freedom of Information Law as well, I note that it has been held
that its scope is more expansive than the Open Meetings Law. The former is applicable to all agency records, for §86(4) defines the term "record" to include:

"...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."

In another decision rendered by the Court of Appeals, Citizens for Alternatives to Animal
Labs, Inc. v. Board of Trustees of the State University of New York [ 92 NY2d 357, October 22, (1998)], even though records were kept pursuant to federal law by a state agency, the Court determined that the records fell within the coverage of the New York Freedom of Information Law and were subject to rights conferred by that statute. In short, the fact that records are kept or held by an agency brings them within the coverage of the Freedom of Information Law, irrespective of"the function or purpose for which an agency's documents are generated or held." The Court held further that "FOIL's scope...'is not to be limited based on the [Federal] purpose' for which the certifications were kept 'or the function to which [they] relate [],' i.e., serving to comply with a Federal mandate..." (id., 361).

As in the case of your contentions concerning executive sessions in which no specific
allegation was offered, you have not referred to any particular instance in which you believe that the Board has failed to comply with the Freedom of Information Law. That being so, I can only advise that the 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. I note that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow. In my view, the phrase quoted in the preceding sentence evidences a recognition on the part of the Legislature that a single record or report, for example, might include
portions that are available under the statute, as well as portions that might justifiably be withheld. That being so, I believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.

The Court of Appeals reiterated its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department, stating that:

"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[4][b]). As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393
N.E.2d 463)" [89 NY 2d 267, 275 (1996)].

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Tom Wilkey
Lee Daghlian