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OML-AO-3799

May 19, 2004

E-MAIL

TO:

FROM: Robert J. Freeman, Executive Director

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

I have received your letter in which you raised a variety of concerns and questions relating to access to records of the City of Hudson.

Your initial area of inquiry involves whether it is "legal for an office to destroy the ‘paper trail’ of documents during a so-called process of ‘revision.’" In this regard, the Freedom of Information Law does not include or provide direction or requirements concerning the preservation or destruction of records. Pertinent is Article 57-A of the Arts and Cultural Affairs Law, which deals with the management, custody, retention and disposal of records by local governments. For purposes of those provisions, §57.17(4) of the Arts and Cultural Affairs Law defines "record" to mean:

"...any book, paper, map, photograph, or other information-recording device, regardless of physical form or characteristic, that is made, produced, executed, or received by any local government or officer thereof pursuant to law or in connection with the transaction of public business. Record as used herein shall not be deemed to include library materials, extra copies of documents created only for convenience of reference, and stocks of publications."

With respect to the retention and disposal of records, §57.25 of the Arts and Cultural Affairs Law states in relevant part that:

"1. It shall be the responsibility of every local officer to maintain records to adequately document the transaction of public business and the services and programs for which such officer is responsible; to retain and have custody of such records for so long as the records are needed for the conduct of the business of the office; to adequately protect such records; to cooperate with the local government's records management officer on programs for the orderly and efficient management of records including identification and management of inactive records and identification and preservation of records of enduring value; to dispose of records in accordance with legal requirements; and to pass on to his successor records needed for the continuing conduct of business of the office...

2. No local officer shall destroy, sell or otherwise dispose of any public record without the consent of the commissioner of education. The commissioner of education shall, after consultation with other state agencies and with local government officers, determine the minimum length of time that records need to be retained. Such commissioner is authorized to develop, adopt by regulation, issue and distribute to local governments retention and disposal schedules establishing minimum retention periods..."

As such, records cannot be destroyed without the consent of the Commissioner of Education, and local officials cannot destroy or dispose of records until the minimum period for the retention of the records has been reached. To ascertain the length of time that the records of your interest must be retained, it is suggested that you might contact the State Archives, the unit of the Education Department that devises the retention schedules, at 474-6928.

Second, you wrote that the City of Hudson’s Code Enforcement Officer"demanded a $25 ‘administration fee’ in advance of any compliance with [your] request....even if the question ended up without any resulting documents." You added that it is your understanding that a fee of that nature cannot be charged "unless there was a local statute prescribing such a fee..." Based on the legislative history of the Freedom of Information Law, the City cannot assess such a fee, even if a local law or "local statute" prescribes the assessment of the fee.

By way of background,§87(1)(b)(iii) of the Freedom of Information Law stated until October 15, 1982, that an agency could charge up to twenty-five cents per photocopy or the actual cost of reproduction unless a different fee was prescribed by "law". Chapter 73 of the Laws of 1982 replaced the word "law" with the term "statute". As described in the Committee's fourth annual report to the Governor and the Legislature of the Freedom of Information Law, which was submitted in December of 1981 and which recommended the amendment that is now law:

"The problem is that the term 'law' may include regulations, local laws, or ordinances, for example. As such, state agencies by means of regulation or municipalities by means of local law may and in some instances have established fees in excess of twenty-five cents per photocopy, thereby resulting in constructive denials of access. To remove this problem, the word 'law' should be replaced by 'statute', thereby enabling an agency to charge more than twenty-five cents only in situations in which an act of the State Legislature, a statute, so specifies."

Therefore, prior to October 15, 1982, a local law, an ordinance, or a regulation for instance, establishing a search fee or a fee in excess of twenty-five cents per photocopy or higher than the actual cost of reproduction was valid. However, under the amendment, only an act of the State Legislature, a statute, would in my view permit the assessment of a fee higher than twenty-five cents per photocopy, a fee that exceeds the actual cost of reproducing records that cannot be photocopied, (i.e., electronic information), or any other fee, such as a fee for "administration", search or overhead costs. In addition, it has been confirmed judicially that fees inconsistent with the Freedom of Information Law may be validly charged only when the authority to do so is conferred by a statute [see Gandin, Schotsky & Rappaport v. Suffolk County, 640 NYS 2d 214, 226 AD 2d 339 (1996); Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)].

Further, the specific language of the Freedom of Information Law and the regulations promulgated by the Committee on Open Government indicate that, absent statutory authority, an agency may charge fees only for the reproduction of records. Section 87(1)(b) of the Freedom of Information Law states:

"Each agency shall promulgate rules and regulations in conformance with this article...and pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article, pertaining to the availability of records and procedures to be followed, including, but not limited to...

(iii) the fees for copies of records which shall not exceed twenty-five cents per photocopy not in excess of nine by fourteen inches, or the actual cost of reproducing any other record, except when a different fee is otherwise prescribed by statute."

The regulations promulgated by the Committee state in relevant part that:

"Except when a different fee is otherwise prescribed by statute:

(a) There shall be no fee charged for the following:
(1) inspection of records;
(2) search for records; or
(3) any certification pursuant to this Part" (21 NYCRR 1401.8)."

Although compliance with the Freedom of Information Law involves the use of public employees' time and perhaps other costs, the Court of Appeals has found that the Law is not intended to be given effect "on a cost-accounting basis", but rather that "Meeting the public's legitimate right of access to information concerning government is fulfillment of a governmental obligation, not the gift of, or waste of, public funds" [Doolan v. BOCES, 48 NY 2d 341, 347 (1979)].

Your remaining questions deal with minutes of meetings, and you wrote that you "found several errors" in the minutes of a meetings of the Zoning Board of Appeals. Although you pointed out the errors to the Chairman, he informed you that you have no right to "question the minutes" and that only board members may do so. You added that the mayor "impounded" the minutes of local boards, commissions and committees" and asked whether it is "common practice to have copies of such minutes and requests for copies of these minutes filtered through the Mayor’s office."

Section 106 of the Open Meetings Law pertains to minutes of meetings and 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."

The provisions quoted above offer guidance in relation to several of the issues that you raised. It is clear, for example, that minutes need not consist of a verbatim of account of all that is stated a meeting. It is also clear that minutes must be prepared and made available to the public "within two weeks of the date of such meeting." I note, too, that there is nothing in the Open Meetings Law or any other statute of which I am aware that requires that minutes be approved. Nevertheless, as a matter of practice or policy, many public bodies approve minutes of their meetings. In the event that minutes have not been approved, to comply with the Open Meetings Law, it has consistently been advised that minutes be prepared and made available within two weeks, and that if the minutes have not been approved, they may be marked "unapproved", "draft" or "preliminary", for example. By so doing within the requisite time limitations, the public can generally know what transpired at a meeting; concurrently, the public is effectively notified that the minutes are subject to change. If minutes have been prepared within less than two weeks, I believe that those unapproved minutes would be available as soon as they exist, and that they may be marked in the manner described above.

I do not believe that it is "common practice" for a mayor to control access to minutes of meetings, and there is nothing in the Open Meetings Law that provides guidance concerning who should have custody of minutes or where they must be kept. There may, however, be provisions in the City code or charter that offer direction. Notwithstanding the absence of any such provision, in my experience, minutes are among the most public and readily accessible records maintained by local governments. In many instances, they are routinely and informally made available without any written or formal request. While there is no requirement that minutes be placed on a municipality’s website, either in their "official" or summary form, local governments often do so, again, because minutes are unquestionably public.

Lastly, inherent in the law is that the minutes must be accurate and reflect the reality of what occurred or was expressed. In my view, a member of the public has no right to insist upon the amendment or correction of minutes; I believe that only a public body, by means of a majority vote of its total membership, may amend or correct minutes. However, certainly you or anyone else may seek to bring perceived inaccuracies to the attention of government officials.

As you inferred, meetings are frequently recorded, and it was held more than twenty-five years ago that a tape recording of an open meeting constitutes a record that must be made available to the public under the Freedom of Information Law (see Zaleski v. Hicksville Union Free School District, Supreme Court, Nassau County, NYLJ, December 27, 1978). Moreover, it has been held that a member of the public may audio or video record an open meeting of a public body, so long as the use of the recording device is neither disruptive nor obtrusive [see e.g., Csorny v. Shoreham-Wading River Central School District, 305 AD2d 83 (2003)]. Through a review of a recording, whether it was prepared by a government agency or the public, there should be an opportunity to ascertain whether the contents of minutes are indeed accurate.

I hope that I have been of assistance.

RJF:tt

cc: City Council
Mayor, City of Hudson
Code Enforcement Officer