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OML-AO-3912

December 27, 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 facts presented in your correspondence.

Dear

I have received your letter and the correspondence relating to it. You have requested an advisory opinion "on whether the times and/or place at which the Franklin County Legislature conducts its official business violate the Open Meetings Law."

By way of background, Franklin County is physically large, consisting of more than 1,600 square miles, and its county seat, Malone, is located at the northern end of the County. You and "roughly 47 percent of the County’s population" live in the southern end of the County. The trip from the southern end of the County to Malone involves approximately fifty miles, and travel from your residence to Malone is time consuming and, in consideration of the cost of gasoline, expensive. You wrote that meetings of the County Legislature are "held during the daytime, typically between 10 AM and 2 PM", and that many County residents who may be interested in attending "must take off at least a half-day of work" to do so. You have questioned the legality of the location of meetings of the County Legislature and the time during which the meetings are held.

In this regard, there is nothing in the Open Meetings Law that specifies precisely where or when meetings must be held. Nevertheless, it has been advised in a variety of contexts that every provision of law, including the Open Meetings Law, must be carried out in a manner that gives reasonable effect to its intent. Section 100 of that statute, the legislative declaration, states in part that: "It is essential...that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and 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." In my opinion, a meeting of the County Legislature, or any municipal body, must be held at a location where members of the public who might want to attend may have a reasonable opportunity to do so.

What is reasonable, in my view, may be dependent on attendant facts and circumstances. As you are aware, there are judicial decisions indicating that meetings held by a board of education some twenty miles from the district it serves (Goetschius .v Board of Education, Supreme Court, Westchester County, March 8, 1999) and others held at 7:30 a.m. [Goetschius v. Board of Education, 244 AD2d 552 (1997)] effectively precluded many from attending and represented an unreasonable exercise of authority in a manner inconsistent with the Open Meetings Law. In those cases, it appears that a public body’s actions were intended to ensure that some individuals, notably the petitioner, a union activist, and other District employees, could not attend. In the context of the facts that you presented, the County is physically much larger than the school district in Goetschius, the meetings of the Legislature are held within the County at the seat of County government, and they are held during regular business hours.

Meetings scheduled at 7:30 a.m. can likely be attended by relatively few; meetings held at 7:30 p.m. by the County Legislature would likely involve driving late at night by many who would be interested in attending. While meetings scheduled during regular business hours might involve a hardship for some, it is an appropriate and reasonable time for others. Further, as indicated by the Chairman of the Legislature, County officials, whose expertise may be needed by the Legislature during meetings, are readily available during business hours to provide guidance to legislators meeting in the seat of County government.

I doubt that there is a perfect time or place for holding meetings that would accommodate the needs of all of those interested in attending. While a substantial percentage of the County’s population resides in the southern end of the county, a greater percentage apparently resides closer to Malone. What may be fair to some may be unfair to others. In consideration of the facts associated with the situation that you presented, I do not believe that a court would determine that the time and place of meetings of the County Legislature are unreasonable or constitute a violation of the Open Meetings Law.

With respect to your suggestion that a variety of information and records be made available via the internet, I fully agree. While there is no law that requires that notices of meetings, agendas, minutes, budgets, announcements of employment opportunities, etc. be accessible online, it has become common practice to do so, and this office has encouraged agencies to do so. Further, when records are made available online, the time and effort needed to respond to a traditional request for those records under the Freedom of Information Law can be eliminated.

Lastly, in separate correspondence, you inferred that a County official complained with respect to a request made under the Freedom of Information Law that involved an hour to fulfill. Upon review of the records by the applicant, that person decided that he/she wanted only three photocopies involving a payment of a fee to the County of only seventy-five cents. In this regard, the 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 states 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 section 1401.8).

As such, the Committee's regulations specify that no fee may be charged for personnel time, for inspection of or search for records, except as otherwise prescribed by statute.

Although compliance with the Freedom of Information Law involves the use of public employees' time, 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)].

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director
RJF:tt
cc: Hon. Earl J. LaVoie, Chairman
James N. Feeley
Ms. Vallone, Clerk of the Legislature