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OML-AO-4567

February 20, 2008

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 correspondence and hope that you will accept my apologies for the delay in response.  The issues that you raised relate to the Clinton-Essex-Warren-Washington Health Insurance Consortium (“the Consortium”).

            Before focusing on the specific issues that you raised, I note that the Consortium is, in my opinion, an “agency” as that term is defined in §86(3) of the Freedom of Information Law, and that its governing body is a “public body” subject to the Open Meetings Law.

            Section 102(2) of the Open Meetings Law defines the phrase "public body" to include:

"...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."

            As I understand the matter, the Board of Directors of the Consortium carries out its duties in accordance with the authority conferred by Articles 5-G of the General Municipal Law and 47 of the Insurance Law.  With respect to the former, §119-o(1) of the General Municipal states in relevant part that:

"In addition to any other general or special powers vested in municipal corporations and districts for the performance of their respective functions, powers or duties on an individual, cooperative, joint or contract basis, municipal corporations and districts shall have the power to enter into, amend, cancel and terminate agreements for the performance among themselves or one for the other of their respective functions, powers and duties on a cooperative or contract basis or for the provision of a joint service..."

In Article 47 of the Insurance Law, §4701(a) states that:

"Cooperative health risk-sharing agreements allow public entities to:  share, in whole or part, the costs of self-funding employee health benefit plans; provide municipal corporations, school districts and other public employers with an alternative approach to stabilize health claim costs; lower per unit administration costs; and enhance negotiating power with health providers by spreading such costs among a larger pool of risks."

Further, subdivision (e) and (f) of §4702 respectively provide as follows:

"(e)  'Municipal cooperative health benefit plan' or 'plan' means any plan established or maintained by two or more municipal corporations pursuant to a municipal cooperation agreement for the purpose of providing medical, surgical or hospital services to employees or retirees of such municipal corporations and to the dependents of such employees or retirees.

(f)  'Municipal corporation' means within the state of New York, a city with a population of less than one million or a county outside the city of New York, town, village, board of cooperative educational services, school district, a public library, as defined in section two hundred fifty-three of the education law, or district, as defined in section one hundred nineteen-n of the general municipal law."

Based on the foregoing, the participants in the consortium have been given the legal authority to create a cooperative health benefit plan in furtherance of their official governmental functions, powers and duties.  If that is so, the Board of Directors conducts public business and performs a governmental function for a group of public corporations, i.e., school districts.  In short, given the characteristics of the Consortium, again, I believe that it is a "public body" required to comply with the Open Meetings Law.

            Lastly, the foregoing is not to suggest that the meetings of the Board of Directors must be conducted in public in their entirety.  As you may be aware, every meeting of a public body is required to be preceded by notice given in accordance with §104 of the Open Meetings Law, and every meeting must be convened as an open meeting.  Nevertheless, in view of the functions of the Board of Directors, it is likely that some aspects of its business could be conducted during validly convened executive sessions.  For example, there may be instances in which it considers collective bargaining negotiations or the financial or medical history of a particular person.  In those kinds of circumstances, executive sessions could likely be held pursuant to §105(1)(e) or (f) of the Open Meetings Law.

            The Freedom of Information Law is applicable to agencies, and §86(3) of that statute defines the “agency” to mean:

"...any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

Since a municipal corporation is a kind of public corporation (see General Construction Law, §66), the Consortium is, in my view, an agency required to comply with the Freedom of Information Law.

            One element of your correspondence deals with the “subject matter list.”  As a general matter, the Freedom of Information Law pertains to existing records, and an agency is not required to create a record in response to a request [see §89(3)].  Similarly, if records that once existed have legally been disposed of or destroyed, the Freedom of Information Law would not apply.

            An exception that rule relates to the subject matter list.  Specifically, §87(3) of the Freedom of Information Law states in relevant part that:

"Each agency shall maintain...

c.  a reasonably detailed current list by subject matter, of all records in the possession of the agency, whether or not available under this article."

The "subject matter list" required to be maintained under §87(3)(c) is not, in my opinion, required to identify each and every record of an agency; rather I believe that it must refer, by category and in reasonable detail, to the kinds of records maintained by an agency.  Further, the regulations promulgated by the Committee on Open Government state that such a list should be sufficiently detailed to enable an individual to identify a file category of the record or records in which that person may be interested [21 NYCRR 1401.6(b)].  I emphasize that §87(3)(c) does not require that an agency ascertain which among its records must be made available or may be withheld.  Again, the Law states that the subject matter list must refer, in reasonable detail, to the kinds of records maintained by an agency, whether or not they are available.

            It has been suggested that the records retention and disposal schedules developed by the State Archives and Records Administration at the State Education Department may be used as a substitute for the subject matter list.  It is suggested that you ask to review the retention schedule applicable to the College.  Alternatively, you could request a copy of the schedule from the State Archives and Records Administration by calling (518)474-6926.
I note that in one aspect of a request made pursuant to the Freedom of Information Law, you asked for an “explanation of how the proposed activity is consistent with specific grant selection criteria.”  Again, the Freedom of Information Law pertains to existing records, and if no “explanation” exists, an agency would not be required to create a record containing the information sought.

            Next, as you are aware, a grant application submitted by one agency, such as the Consortium, to another agency would constitute intra-agency material falling within the coverage of §87(2)(g) of the Freedom of Information Law.  That provision authorizes an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i.  statistical or factual tabulations or data;

ii.  instructions to staff that affect the public;

iii.  final agency policy or determinations; or

iv.  external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative.  While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted.  Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

            You referred in one letter to the unanimous approval of a resolution by the governing body of the Consortium and indicated that the approval was made without any public discussion.  Due to the absence of discussion, you asked for a “ruling as to whether the vote taken on this resolution is valid...”  Your inference, I believe, is that there must have been a private discussion prior to the approval of the resolution.

            In this regard, first, the authority of this office involves providing advice and opinions; it is not empowered to issue a “ruling” that is binding or which has the force of law.

            Second, the unanimous approval without discussion does not necessarily suggest that a meeting was held in contravention of the Open Meetings Law.  There are numerous instances in which written materials distributed to members of public bodies in advance of their meetings enable them to take action with little or no discussion.  Further, action taken by a public body remains valid unless and until a court renders a determination to the contrary.

            Lastly, §106 of the Open Meetings Law pertains to minutes of meetings and provides what might be characterized as minimum requirements concerning the contents of minutes.  Subdivision (1) concerning minutes of open meetings states that:

"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."

In short, so long as minutes consist of a record or summary of motions, proposals, resolutions, action taken and the vote of the members, the minutes would be adequate to comply with law.  They may be more detailed, but there is no requirement that they be expansive.

            I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

RJF:jm

cc: Teri Calabrese-Gray
Tammy Johnson
Susan Watson