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OML-AO-4586

                                                                                                March 26, 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 facts presented in your correspondence.

Dear

            We are in receipt of your request for an advisory opinion regarding application of the Freedom of Information Law to the Hudson River-Black River Regulating District.  Specifically, you asked about the timeliness of the District’s responses, the contents of meeting minutes, and access to electronic records.  The District responded to your request by submitting Correspondence dated January 22, 2008, a copy of which is enclosed herein.  In an attempt to address the issues raised in both of the submissions, we offer the following comments.

            First, as you know, the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests.  Specifically, §89(3) of the Freedom of Information Law states in part that:

"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied...”

            It is noted that new language was added to that provision in 2005 stating that:

“If circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part.” 

            Based on the foregoing, an agency must grant access to records, deny access in writing, or acknowledge the receipt of a request within five business days of receipt of a request.  When an acknowledgment is given, it must include an approximate date within twenty business days indicating when it can be anticipated that a request will be granted or denied.  However, if it is known that circumstances prevent the agency from granting access within twenty business days, or if the agency cannot grant access by the approximate date given and needs more than twenty business days to grant access, it must provide a written explanation of its inability to do so and a specific date by which it will grant access.  That date must be reasonable in consideration of the circumstances of the request.

            The amendments clearly are intended to prohibit agencies from unnecessarily delaying disclosure.  They are not intended to permit agencies to wait until the fifth business day following the receipt of a request and then twenty additional business days to determine rights of access, unless it is reasonable to do so based upon “the circumstances of the request.”  From our perspective, every law must be implemented in a manner that gives reasonable effect to its intent, and we point out that in its statement of legislative intent, §84 of the Freedom of Information Law states that "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible."  Therefore, when records are clearly available to the public under the Freedom of Information Law, or if they are readily retrievable, there may be no basis for a delay in disclosure.  As the Court of Appeals, the state’s highest court, has asserted:

"...the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom.  By their very nature such objectives cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception.  The phrase 'public accountability wherever and whenever feasible' therefore merely punctuates with explicitness what in any event is implicit" [Westchester News v. Kimball, 50 NY2d 575, 579 (1980)].

            In a judicial decision concerning the reasonableness of a delay in disclosure that cited and confirmed the advice rendered by this office concerning reasonable grounds for delaying disclosure, it was held that:

“The determination of whether a period is reasonable must be made on a case by case basis taking into account the volume of documents requested, the time involved in locating the material, and the complexity of the issues involved in determining whether the  materials fall within one of the exceptions to disclosure.  Such a standard is consistent with some of the language in the opinions, submitted by petitioners in this case, of the Committee on Open Government, the agency charged with issuing advisory opinions on FOIL”(Linz v. The Police Department of the City of New York, Supreme Court, New York County, NYLJ, December 17, 2001).

            If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time beyond the approximate date of less than twenty business days given in its acknowledgement, if it acknowledges that a request has been received, but has failed to grant access by the specific date given beyond twenty business days, or if the specific date given is unreasonable, a request may be considered to have been constructively denied [see §89(4)(a)].  In such a circumstance, the denial may be appealed in accordance with §89(4)(a), which states in relevant part that:

"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."

            Section 89(4)(b) was also amended, and it states that a failure to determine an appeal within ten business days of the receipt of an appeal constitutes a denial of the appeal.  In that circumstance, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules.

            With respect to the particular circumstances of your request for records presented at a September 10, 2007 Board Meeting, we note that the District responded within five business days of receipt of your request.  Although there was some confusion, the record is clear that your request was received on September 11, 2007 and the District’s acknowledgment was sent on September 17, 2007.  The District then followed up in writing within an additional twenty business days, indicating that paper copies of the records were available for pick up at the Sacandaga Field Office, that one of the records was available on line, and that if you preferred to have copies mailed to you, you should submit payment to the District.

            The following day, Saturday, October 6, 2007, you wrote back to the District via email, and asked for a link to the online records and whether the remaining records were available electronically.  On October 15, 2007 the District responded with a link to the online record, an electronic copy of the minutes, an explanation for why creation of the minutes was delayed, and clarification that one record was not available electronically.

            In our opinion it is implicit in a request for records sent via email that the records be transmitted electronically.  As you noted, §89(3) of the Freedom of Information Law was amended in 2006 to require agencies that are able to accept requests via email to respond to such requests by electronic mail.  Accordingly, while it is not clear why the District did not initially or immediately (after the holiday) provide a link to the records that were available on the District’s website, we believe that would have been the most expedient response.  In our opinion, when a request is made for access to records via email, the intent of the law is best served by responding with an electronic version if it is available, or a link to the corresponding webpage.

            With respect to your concerns about the District’s response to your request for an electronic copy of the minutes, from our 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 our opinion that minutes of open meetings must be prepared and made available "within two weeks of the date of such meeting."

Because it is likely that the minutes did not exist at the time you requested them (one day after the meeting), it is our opinion that the District could have immediately denied access to the as yet uncreated minutes.  Instead, a few weeks later, the District indicated that the minutes were “available for pickup”.  Again, in our opinion, if they existed, the District should have forwarded an electronic copy of the records in response to your request.

            With respect to your question concerning the adequacy of the minutes, we note that §106(1) of the Open Meetings Law pertains to minutes of open meetings and requires 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 meeting 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.”

            From our perspective, every law, including the Open Meetings Law, must be implemented in a manner that gives reasonable effect to its intent.  Based on that presumption, we believe that minutes must be sufficiently descriptive to enable the public and others (i.e., future Town officials), upon their preparation and upon review perhaps years later, ascertain the nature of action taken by a public body.

            Review of the minutes you provided indicate that after an informal competitive bid process in accordance with the District’s purchasing policy, the District unanimously approved a resolution to purchase a compact track loader.   Further, and with respect to the record of the unanimously approved resolution to award public relations consulting services work, our review of the minutes indicates the name of the winning firm and the period of the service contract.  In our opinion, these minutes include sufficient information to ascertain the nature of the District’s action.

            We note that if underlying factual information such as a purchase price or a lump sum award are set forth in a resolution, such resolution could be attached to or incorporated by reference into the meeting minutes.  Although in our opinion it is not always necessary, it is a simple way to ensure that information is readily available.

            Finally, we note that while an agency is not required to create a record in response to a request, it is our view that if the agency has the ability to scan records in order to transmit it via email, and when doing so will not involve any effort additional to an alternative method of responding, it would be required to scan the records.  For example, when copy machines are equipped with scanning technology that can create electronic copies of records as easily as paper copies, and the agency would not be required to perform any additional task in order to create an electronic record as opposed to a paper copy, we believe that the agency is required to do so.  Further, it appears in that instance that transferring a paper record into electronic format would diminish the amount of work imposed upon the agency in consideration of the absence of any need to collect and account for money owed or paid for preparing paper copies, and the availability of the record in electronic format for future use.

            In sum, it is our opinion that if the agency has the technology to scan a record without an effort additional to responding to a request in a different manner, and a request is made to supply the record via email, the agency must do so to comply with the Freedom of Information Law.

            On behalf of the Committee on Open Government, we hope this is helpful to you.

                                                                                                Sincerely,

 

                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director

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