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OML-AO-4666

 

                                                                                                August 18, 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

            We are in receipt of your request for an advisory opinion concerning application of the Open Meetings Law to gatherings of the members of the Evans Town Board.  Specifically, you inquired about gatherings of Board members in the Supervisor’s office prior to regular board meetings, “informal” or “unofficial”  meetings, and the lack of debate or discussion before voting on issues at town board meetings.  You further inquired about the content and availability of minutes in a particular format.  In this regard, we offer the following comments.

            First, from our perspective, there is no legal distinction between an “informal” meeting, an “unofficial” meeting, a work session, or a regular meeting. 

            By way of background, it is noted 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)]. 

            The decision rendered by the Court of Appeals was precipitated by contentions made by public bodies that so-called "work sessions" and similar gatherings held for the purpose of discussion, but without an intent to take action, fell outside the scope of the Open Meetings Law.  In discussing the issue, the Appellate Division, whose determination was unanimously affirmed by the Court of Appeals, stated that: 

"We believe that the Legislature intended to include more than the mere formal act of voting or the formal execution of an official document.  Every step of the decision-making process, including the decision itself, is a necessary preliminary to formal action.  Formal acts have always been matters of public record and the public has always been made aware of how its officials have voted on an issue.  There would be no need for this law if this was all the Legislature intended.  Obviously, every thought, as well as every affirmative act of a public official as it relates to and is within the scope of one's official duties is a matter of public concern.  It is the entire decision-making process that the Legislature intended to affect by the enactment of this statute" (60 AD 2d 409, 415).

            The court also dealt with the characterization of meetings as "informal," stating that: 

"The word 'formal' is defined merely as 'following or according with established form, custom, or rule' (Webster's Third New Int.  Dictionary). We believe that it was inserted to safeguard the rights of members of a public body to engage in ordinary social transactions, but not to permit the use of this safeguard as a vehicle by which it precludes the application of the law to gatherings which have as their true purpose the discussion of the business of a public body" (id.). 

Based upon the direction given by the courts, if a majority of a public body gathers to discuss public business, any such gathering, in our opinion, would ordinarily constitute a "meeting" subject to the Open Meetings Law.  Since an “informal” meeting or a “work session” held by a majority of a public body is a “meeting”, it would have the same responsibilities in relation to notice and the taking of minutes as in the case of a formal meeting, as well as the same ability to enter into executive sessions.

            Second, with respect to your frustration with the lack of public debate, we note an amendment to §107(1) of the Open Meetings Law recently approved, that is intended to improve compliance and to ensure that public business is discussed in public as required by that law.  Effective August 5, 2008, the new provision states that when it is found by a court that a public body voted in private “in material violation” of the law “or that substantial deliberations occurred in private” that should have occurred in public, the court “shall award costs and reasonable attorney’s fees” to the person or entity that initiated the lawsuit.

            The intent of this amendment, in our opinion, is not to encourage litigation, but to enhance compliance and to encourage members of public bodies and those who serve them to be more knowledgeable regarding their duty to abide by the Open Meetings Law.

            Third, with respect to minutes of "work sessions", as well as other meetings, the Open Meetings Law contains what might be viewed as minimum requirements concerning the contents of minutes.  Specifically, §106 of the Open Meetings Law 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."

            Based upon the foregoing, it is clear in our view that minutes need not consist of a verbatim account of what was said at a meeting; similarly, there is no requirement that minutes refer to every topic discussed or identify those who may have spoken.  Although a public body may choose to prepare expansive minutes, at a minimum, minutes of open meetings must include reference to all motions, proposals, resolutions and any other matters upon which votes are taken.  If those kinds of actions, such as motions or votes, do not occur during workshops, technically we do not believe that minutes must be prepared.

            Next, although they were previously provided to you, you indicated that now the Town denied access to electronic copies of minutes in the format that you request (WordPerfect), and that the Town Clerk indicated she spoke with the executive director of the Committee, as follows: “Mr. Freeman advised me that as long as the minutes are provided on the Town’s website and you have access to the internet that is sufficient and compliant with Freedom of Information and Open Government Laws.”  In an effort to assist in reaching an amicable resolution of the matter, we offer the following comments.

In our view, the Freedom of Information Law, in terms of its intent and its judicial interpretation, has and should be construed to require agencies to produce accessible information in the format of the applicant’s choice, so long as the agency is able to do so with reasonable effort. 

            Illustrative of that principle is a case in which an applicant sought a database in a particular format, and even though the agency had the ability to generate the information in that format, it refused to make the database available in the format requested and offered to make available a printout.  In holding that the agency was required to make the data available in the format requested and upon payment of the actual cost of reproduction, the Court in Brownstone Publishers, Inc. v. New York City Department of Buildings unanimously held that:

"Public Officers Law [section] 87(2) provides that, 'Each agency shall...make available for public inspection and copying all records...' Section 86(4) includes in its definition of 'record', computer tapes or discs. The policy underlying the FOIL is 'to insure maximum public access to government records' (Matter of Scott, Sardano & Pomerantz v. Records Access Officer, 65 N.Y.2d 294, 296-297, 491 N.Y.S.2d 289, 480 N.E.2d 1071).  Under the circumstances presented herein, it is clear that both the statute and its underlying policy require that the DOB comply with Brownstone's reasonable request to have the information, presently maintained in computer language, transferred onto computer tapes" [166 Ad 2d, 294, 295 (1990)].

            Further, in a decision that cited Brownstone, it was held that: "[a]n agency which maintains in a computer format information sought by a F.O.I.L. request may be compelled to comply with the request to transfer information to computer disks or tape" (Samuel v. Mace, Supreme Court, Monroe County, December 11, 1992).

            Consistent with those decisions, earlier this month, the Freedom of Information Law was amended to require that “an agency shall provide records on the medium requested by a person, if the agency can reasonably make such copy or have such copy made by engaging an outside professional service” (§87[5][a]).

            In short, assuming that the minutes can be provided in the format you requested, as demonstrated by the Town’s previous production of minutes in that format, we believe that the Town is under a continuing obligation to do so.

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

                                                                                                Sincerely,

 

                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director

 

CSJ:jm

cc: Hon. Carol A. Meissner