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OML-AO-4848

                                                                                                January 11, 2010

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 hope that you will accept my apologies for the delay in response.

            You referred to the Governor’s Task Force on Public Employee Retirement Health Care Benefits (“the Task Force”), which was created through the issuance of Executive Order #15, and questioned whether the public may be barred from attending its meetings or gaining access to minutes of those meetings or other, related records.

            Having reviewed the Executive Order, and based on statutory guidance and judicial precedent, I do not believe that meetings of the Task Force must be open to the public.  However, its records are, in my view, subject to rights of access conferred by the Freedom of Information Law.  In this regard, I offer the following comments.

            First, with respect to the ability to attend meetings, the Open Meetings Law is applicable to meetings of public bodies, and §102(2) defines the phrase "public body" to mean:

"...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."

            Based on the foregoing, a public body is, in my view, an entity required to conduct public business by means of a quorum that performs a governmental function and carries out its duties collectively, as a body.  The definition refers to committees, subcommittees and similar bodies of a public body, and judicial interpretations indicate that if a committee, for example, consists solely of members of a particular public body, it constitutes a public body [see e.g., Glens Falls Newspapers v. Solid Waste and Recycling Committee of the Warren County Board of Supervisors, 195 AD2d 898 (1993)].  For instance, in the case of a legislative body consisting of seven members, four would constitute a quorum, and a gathering of that number or more for the purpose of conducting public business would be a meeting that falls within the scope of the Law.  If that entity designates a committee consisting of three of its members, the committee would itself be a public body; its quorum would be two, and a gathering of two or more, in their capacities as members of that committee, would be a meeting subject to the Open Meetings Law.

            Several judicial decisions, however, indicate generally that advisory bodies, other than those consisting of members of  a particular governing  body, that have no power to take final action fall outside the scope of the Open Meetings Law.  As stated in those decisions:  "it has long been held that the mere giving of advice, even about governmental matters is not itself a governmental function" [Goodson-Todman Enterprises, Ltd. v. Town Board of Milan, 542 NYS 2d 373, 374, 151 AD 2d 642 (1989); Poughkeepsie Newspaper v. Mayor's Intergovernmental Task Force, 145 AD 2d  65, 67 (1989); see also New York Public Interest Research Group v. Governor's Advisory Commission, 507 NYS 2d 798, aff'd with no opinion, 135 AD 2d 1149, motion for leave to appeal denied, 71 NY 2d 964 (1988)].

            It is noted that the last decision cited above dealt with an advisory commission created by executive order.  As I understand Executive Order #15, the functions of the Task Force are advisory in nature.  If that is so, based on the decisions cited above, it does not constitute a public body, it is not subject to the Open Meetings Law and, therefore, the public does not have the right to attend its meetings.

            Second, the scope of the Freedom of Information Law is more expansive than the Open Meetings Law, for it pertains to all government agency records.  It is clear in my view, that the Executive Chamber is an “agency” as that term is defined in §86(3) of the Freedom of Information Law.  More importantly, that statute defines the term “record” in §86(4) to include:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

The written materials produced or acquired by the Task Force are, in my opinion, “records”, irrespective of whether they are maintained on paper or electronically, for they are “kept”, “held” and “produced” for an agency, the Executive Chamber.

            As a general matter, the Freedom of Information Law is based upon a presumption of access.  Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (k) of the Law.

            I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

RJF:jm

cc: David Weinstein, First Assistant Counsel to the Governor