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OML-AO-3866

September 10, 2004

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.

Dear

As you are aware, I have received your letter in which you raised questions pertaining to the Open Meetings Law.

By way of background, you wrote as follows:

"...three members of a town board, their legal counsel and the mayor of the incorporated village within the township were seen entering and existing [sic] the same building at the same time."

You asked whether the foregoing "consisted [of] a quorum for a meeting." You also wrote:

"I have submitted questions to the town board seeking answers to questions. I wasn’t seeking to access records but answers. I have been told by town counsel I must fill out a FOIL in order to receive my answers."

You questioned whether "this [is] a correct interpretation of FOIL."

In this regard, absent additional information, I cannot ascertain or advise whether the situation that you described involved a quorum or a meeting subject to the Open Meetings Law.

A quorum, according to §41 of the General Construction Law, is a majority of the total membership of a public body, such as a town board or village board of trustees. Section 102(1) of the Open Meetings Law defines the term "meeting" to mean "the official convening of a public body for the purpose of conducting public business". I point out that the definition of "meeting" has been broadly interpreted by the courts. In a landmark decision rendered in 1978, the Court of Appeals, the state's highest court, found that any gathering of a quorum of a public body for the purpose of conducting public business is a "meeting" that must be convened open to the public, whether or not there is an intent to take action and regardless of the manner in which a gathering may be characterized [see Orange County Publications v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)].

Inherent in the definition and its judicial interpretation is the notion of intent. If there is an intent that a majority of a public body convene for the purpose of conducting public business, such a gathering would, in my opinion, constitute a meeting subject to the requirements of the Open Meetings Law. However, if there is no intent that a majority of public body will gather for purpose of conducting public business, collectively, as a body, I do not believe that the Open Meetings Law would be applicable. In the same decision as that referenced above, the Court specified that "not every assembling of the members of a public body was intended to be included within the definition", indicating that social events or chance meetings do not fall within the Open Meetings Law (id., 416).

In the situation that you described, a gathering of three of five members of the Town Board would constitute a quorum. However, it is unclear whether the three gathered for the purpose of conducting public business as a body. If they did so, the gathering in my opinion would have been a "meeting" that fell within the Open Meetings Law. On the other hand, the members may have been in the same building for a different reason. One member might have been doing paperwork; another might have been reading mail; a third might have been reviewing plans for a new development. In short, if a majority of the Town Board did not convene for the purpose of conducting public business collectively, there would not have been a meeting, and the Open Meetings Law would not have applied. Again, without additional information, it is impossible to ascertain whether the presence of three members of a public body in the same building would have involved a meeting subject to the Open Meetings Law.

With respect to your second question, I note that the title of the Freedom of Information Law may be somewhat misleading. That statute does not deal with information per se; rather, it pertains to requests for and rights of access to existing records maintained by a government agency. Further, §89(3) provides in part that an agency is not required to create a record in response to a request. While the Freedom of Information Law requires an agency to grant or deny access to existing records in accordance with its provisions, it does not require that an agency provide information or answers in response to questions. An agency may choose to do so, but again, it is not required to do so. Rather than attempting to obtain information by raising questions, it is suggested that, in the future, you request existing records.

I hope that the foregoing serves to clarify your understanding of the Open Meetings and Freedom of Information Laws and that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Town Board