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OML-AO-3981

May 23, 2005

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 information presented in your correspondence.

Dear

I have received your letter and apologize for the delay in response. You asked, first, whether the requirement in §106(3) of the Open Meetings Law that minutes be made available within two week "simply refer[s] to when the minutes must be finalized or does it relate to when they must be accessible to the public.

From my perspective, it is clear that minutes must be prepared and made available to the public within two weeks of the meetings to which they relate, irrespective of whether they are "finalized."

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."

In view of the foregoing, it is clear in my opinion that minutes of open meetings must be prepared and made available "within two weeks of the date of such meeting."

Significantly, 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, again, 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.

You referred to a situation in which the City Council of the City of Yonkers authorized the Mayor to execute a certain lease agreement, and you asked whether "the lease agreement that is the subject of this resolution [is] a part of the official record of the meeting and therefore should be produced along with the resolution if requested." In this regard, unless the action taken expressly required that the lease agreement must be incorporated into the minutes, the agreement would not have to be part of the minutes. However, that record would clearly be accessible pursuant to the Freedom of Information Law. That being so, to obtain the records of interest, I believe that a proper request would involve minutes of a meeting during which action was taken, which, again, must be made available within two weeks of the meeting, as well as the full text of the resolution, and the lease agreement executed or signed by the Mayor.

Lastly, you wrote that meetings of the City Council are "recorded on videotapes that serve as the official minutes." While an audio or video recording would likely contain the elements of minutes, I believe that minutes should nonetheless be reduced to writing in order that they constitute a permanent, written record that can be viewed by the public. Perhaps just as important, a municipality often might need a permanent written record readily accessible to its officials who must refer to or rely upon the minutes in the performance of their duties. I point out, too, that in an opinion rendered by the State Comptroller, it was found that, although tape recordings may be used as an aid in compiling minutes, they do not constitute the "official record" (1978 Op. St. Compt. File #280).

I note that the State Archives and Records Administration, pursuant to provisions of the Arts and Cultural Affairs Law, develops schedules indicating minimum retention periods for various kinds of records. The retention schedule indicates that tape recordings of meetings must be retained for a minimum of four months. However, the schedule also indicates that minutes of meetings must be kept permanently. Because audio and video recordings cannot be preserved permanently, it would be inappropriate in my opinion to consider them as "official" minutes of City Council meetings.

I hope that I have been of assistance.

RJF:jm

cc: City Council