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OML-AO-4871

                                                                                                February 22, 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 both of your letters and hope that you will accept my apologies for the delay in response.

            The first involves the propriety of a secret ballot vote conducted during a meeting of the Westmere Fire Department, notwithstanding the provisions of its constitution or by-laws.

            In this regard, as a general matter, the Freedom of Information and Open Meetings Laws apply to entities of state and local government.  Although volunteer fire departments often are not-for-profit corporations, in 1980, the Court of Appeals, the state’s highest court, determined that they are “agencies” [See §86(3)] subject to the Freedom of Information Law [Westchester-Rockland Newspapers v. Kimball, 50 NY2d 575 (1980)].  On the basis of that decision, volunteer fire companies are required to comply with that law, and by extension, with the Open Meetings Law.

            Since its enactment in 1974, the Freedom of Information Law has precluded secret ballot voting by members of governmental entities.  Section 87(3)(a) of that statute provides that:

"Each agency shall maintain:

(a) a record of the final vote of each member in every agency proceeding in which the member votes..."

Based upon the foregoing, when a final vote is taken by an "agency" subject to the Freedom of Information Law, a record must be prepared that indicates the manner in which each member who voted cast his or her vote.

            In terms of the rationale of §87(3)(a), it appears that the State Legislature in precluding secret ballot voting sought to ensure that the public has the right to know how its representatives may have voted individually concerning particular issues.  Although the Open Meetings Law does not refer specifically to the manner in which votes are taken or recorded, I believe that the thrust of §87(3)(a) of the Freedom of Information Law is consistent with the Legislative Declaration that appears at the beginning of the Open Meetings Law and states that:

"it is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.  The people must be able to remain informed if they are to retain control over those who are their public servants."

Moreover, in an Appellate Division decision that was affirmed by the Court of Appeals, it was found that "The use of a secret ballot for voting purposes was improper."  In so holding, the Court stated that:  "When action is taken by formal vote at open or executive sessions, the Freedom of Information Law and the Open Meetings Law both require open voting and a record of the manner in which each member voted [Public Officers Law §87[3][a]; §106[1], [2]" Smithson v. Ilion Housing Authority, 130 AD 2d 965, 967 (1987); aff'd 72 NY 2d 1034 (1988)].

            I note that there is nothing in either the Freedom of Information or Open Meetings Laws that specifies that a vote must be accomplished by means of a roll call or that a vote be “announced exactly as the same time it is cast.”  In my view, so long as a record is prepared that indicates the manner in which each member cast his or vote, an entity would be acting in compliance with the open vote requirements imposed by those statutes.  I note that the decision cited above referred to “open voting” in the context of both open and executive sessions.  Since the Open Meetings Law permits public bodies to vote in proper circumstances during an executive session [see §§105(1) and 106(2) and (3)], it is clear in my view that roll call voting in public is not required.  That being so, I believe that the procedure that you proposed would be consistent with law.

            While the record of votes by members ordinarily is included in minutes, there is no requirement that it be included in minutes.  While such a record must be prepared and made available, the Court of Appeals has held that such a record may be maintained separate from the minutes [Perez v. City University of New York, 5 NY3d 522, 530 (2005)].

            In the second letter, you indicated that the Department received a report from an investigating committee “chaired by the Chief of the fire department and comprised of department line officers.”  The committee had met earlier to determine whether a Department member failed to comply with the Department’s constitution and by-laws.  A vote was taken by the committee during its meeting and later presented its findings to the Department, which, according to your letter,  relied on the committee’s findings and conclusion.  You wrote that a stenographer was present during the committee meeting, and you asked whether “the minutes, transcripts and exhibits of the investigating committee...are subject to the Freedom of Information Law...”  You added that “Executive Session was never invoked during either meeting, and the investigating committee meeting was open for other members to attend.”

            The initial issue in my view involves the status of the investigating committee under the Open Meetings Law.  That statute 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."

            From my perspective, it is clear that a governing body constitutes a “public body.”  Further, when a committee or subcommittee consists of two or members of a governing body, that, too, in my opinion, would constitute a public body required to give effect to the Open Meetings Law.  On the basis of your remarks, it appears that the investigating committee is a public body subject to the Open Meetings Law.

            Although no executive session might have been held during either the meeting of the investigating committee or the meeting of the Department, it is clear that such a session could have been held.  Section 105(1)(f) of the Open Meetings Law permits a public body to enter into executive session to discuss:

“the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation...”

Both entities appear to have discussed a matter leading to the “discipline, suspension, dismissal or removal” of a member of the Department.

            Assuming that the members of investigating committee and/or the Department recognized that their meetings fell within the coverage of the Open Meetings Law and rejected their ability to enter into an executive session, I believe that, by choosing not to do so, records indicating commentary or testimony occurring during those meetings would be accessible under the Freedom of Information Law.  In short, the choice not to conduct an executive session would, in my view, result in a waiver of the ability to withhold records reflective of information acquired or expressed during the meetings at issue.

            If, however, executive sessions were not held due to an absence of their ability to do so, and if those present during the meetings were persons associated with the Department, rather than members of the public at large, my opinion would be that the records would be subject to rights of access conferred by the Freedom of Information Law, as well as the capacity to withhold records or portions of records in accordance with the exceptions to rights of access appearing in paragraphs (a) through (k) of that law.

            I point out that it has been held that an inadvertent disclosure of records did not create a right of access on the part of the person who inspected records erroneously made available or on the part of the public [see McGraw-Edison v. Williams, 509 NYS2d 285 (1986)].  In conjunction with that holding, if the failure to enter into executive session was inadvertent, perhaps due to lack of familiarity with the Open Meetings Law, or because the only persons present during the meetings at issue had a role in the investigation or decision-making process, it is unlikely in my opinion that a court would require the production of the records at issue in their entirety.

            In that event, it is likely that two of the exceptions to rights of access would be pertinent. 

            Section 87(2)(b) permits an agency to withhold records insofar as disclosure would constitute “an unwarranted invasion of personal privacy.”  While I believe that records reflective of a determination to discipline, suspend or remove a member, as well as any penalty that might have been imposed, would clearly be public, without knowledge of the details relating to matter, I cannot offer advice concerning whether or the extent to which information relating to the matter might be intimate or highly personal and, therefore, potentially deniable.

            The other exception, §87(2)(g) concerning “inter-agency and intra-agency materials” permits an agency to withhold internal communications consisting of advice, opinion, recommendations and the like.  Specifically, the cited 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.

            Typically, a committee of a public body is authorized to offer recommendations to the governing body, the latter of which is empowered to render a final determination.  Those recommendations may be withheld.  However, if the decision-making body specifies that it has adopted the recommendations of a person or body as its determination, the recommendations become the final determination, which, again, is, in my view, public.

            I hope that I have been of assistance

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

RJF:jm

cc: Westmere Fire District