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OML-AO-4924

                                                                                                June 10, 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, unless otherwise indicated.

Dear

            I have received your communication in which you raised issues concerning both the Freedom of Information and Open Meetings Laws that have arisen at the Public Employment Relations Board (PERB).

            The first area of inquiry pertains to a request made pursuant to the Freedom of Information Law in which the applicant sought “all tally sheets from elections conducted in six counties.”  You indicated that the request “did not include petitioner names or case numbers, only the names of employers.”  To fulfill the request, you wrote that “we would have to use Westlaw first to find all cases where elections were held involving those counties, and find the files corresponding to the cases in order to locate the tally sheets.”  The question is: “how much effort is required on our part to use Westlaw to find petitioner names or case numbers in order to complete this request in compliance with FOIL.”

            In this regard, the issue involves whether the request “reasonably describes” the records sought as required by §89(3)(a) of the Freedom of Information Law. 

            Based on the language of the law and its judicial construction, a request made for a specific document or documents does not necessarily indicate that a person seeking the record has made a valid request that must be honored by an agency.  In considering the requirement that records be “reasonable described”, the Court of Appeals has indicated that whether or the extent to which a request meets the standard may be dependent on the nature of an agency’s filing, indexing or records retrieval mechanisms [see Konigsburg v. Coughlin, 68 NY2d 245 (1986)].  When an agency has the ability to locate and identify records sought with reasonable effort in conjunction with its filing, indexing and retrieval mechanisms, it was found that a request meets the requirement of reasonably describing the records, irrespective of the volume of the request.  By stating, however, that an agency is not required to follow “a path not already trodden” (id., 250) in its attempts to locate records, I believe that the Court determined, in essence, that agency officials are not required to search through the haystack for a needle, even if they know or surmise that the needle may be there.

            As I understand your remarks, PERB cannot locate the records sought using its own record-keeping or retrieval mechanisms; rather, to do so, it must employ a search mechanism outside the agency, Westlaw, to initiate the process of locating and retrieving the records sought.  If that is so, it is my view that the request does not meet the requirement that an applicant must reasonably describe the records.

            I note that the regulations promulgated by the Committee on Open Government require that an agency’s records access officer inform an applicant of the means by which records are kept, if necessary, to enable that person request records in a manner that reasonably describes the records [21 NYCRR section 1401.2(b)(2)].  If, for example, the records sought can be found based on PERB’s record-keeping or retrieval systems through use of petitioner names or case numbers, as you inferred, the applicant should be so informed.

            During our conversation, you indicated that the PERB, when all members have been appointed, consists of three, but that there are currently only two members.

            As you are likely aware, the Open Meetings Law is applicable to meetings of public bodies.  From my perspective, it is clear that PERB is a public body, and a “meeting” is a gathering of quorum of a public body for the purpose of conducting public business.  Therefore, when two members of PERB are conducting public business, the Open Meetings Law would require they conduct a meeting in compliance with that statute, unless an exemption from its coverage applies.

            By way of background, I point out that there are two vehicles that may authorize a public body to discuss public business in private.  One involves entry into an executive session.  Section 102(3) of the Open Meetings Law defines the phrase "executive session" to mean a portion of an open meeting during which the public may be excluded, and the Law requires that a procedure be accomplished, during an open meeting, before a public body may enter into an executive session.  Specifically, §105(1) states in relevant part that:

"Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only..."

As such, a motion to conduct an executive session must include reference to the subject or subjects to be discussed and the motion must be carried by majority vote of a public body's membership before such a session may validly be held.  The ensuing provisions of §105(1) specify and limit the subjects that may appropriately be considered during an executive session.  Therefore, a public body may not conduct an executive session to discuss the subject of its choice.

           The other vehicle for excluding the public from a meeting involves "exemptions."  Section 108 of the Open Meetings Law contains three exemptions.  When an exemption applies, the Open Meetings Law does not, and the requirements that would operate with respect to executive sessions are not in effect.  Stated differently, to discuss a matter exempted from the Open Meetings Law, a public body need not follow the procedure imposed by §105(1) that relates to entry into an executive session.  Further, although executive sessions may be held only for particular purposes, there is no such limitation that relates to matters that are exempt from the coverage of the Open Meetings Law.

            Relevant to the matter is the provision to which you alluded, §108(1) of the Open Meetings Law, which exempts from the coverage of that statute "judicial or quasi-judicial proceedings..."

            I believe that one of the elements of a quasi-judicial proceeding is the authority to take final action.  While I am unaware of any judicial decision that specifically so states, there are various decisions that infer that a quasi-judicial proceeding must result in a final determination reviewable only by a court.  For instance, in a decision rendered under the Open Meetings Law, it was found that:

"The test may be stated to be that action is judicial or quasi-judicial, when and only when, the body or officer is authorized and required to take evidence and all the parties interested are entitled to notice and a hearing, and, thus, the act of an administrative or ministerial officer becomes judicial and subject to review by certiorari only when there is an opportunity to be heard, evidence presented, and a decision had thereon" [Johnson Newspaper Corporation v. Howland, Sup. Ct., Jefferson Cty., July 27, 1982; see also City of Albany v. McMorran, 34 Misc. 2d 316 (1962)].

Another decision that described a particular body indicated that "[T]he Board is a quasi-judicial agency with authority to make decisions reviewable only in the Courts" [New York State Labor Relations Board v. Holland Laundry, 42 NYS 2d 183, 188 (1943)].  Further, in a discussion of quasi-judicial bodies and decisions pertaining to them, it was found that "[A]lthough these cases deal with differing statutes and rules and varying fact patterns they clearly recognize the need for finality in determinations of quasi-judicial bodies..." [200 West 79th St. Co. v. Galvin, 335 NYS 2d 715, 718 (1970)].

            It is my opinion that the final determination of a controversy is a condition precedent that must be present before one can reach a finding that a proceeding is quasi-judicial.  Reliance upon this notion is based in part upon the definition of "quasi-judicial" appearing in Black's Law Dictionary (revised fourth edition).  Black's defines "quasi-judicial" as:

"A term applied to the action, discretion, etc., of public administrative officials, who are required to investigate facts, or ascertain the existence of facts, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature."

            In the situation that you described, it is my understanding that following a hearing, PERB renders a determination that is final and binding.  If it does so, I believe that its deliberations, such as those conducted by phone that you described, would be quasi-judicial and, therefore, exempt from the requirements of the Open Meetings Law. 

            It is noted, however, that even when the deliberations of a board of education may be outside the coverage of the Open Meetings Law, its vote and other matters would not be exempt.  As stated in Orange County Publications v. City of Newburgh:

"there is a distinction between that portion of a meeting...wherein the members collectively weigh evidence taken during a public hearing, apply the law and reach a conclusion and that part of its proceedings in which its decision is announced, the vote of its members taken and all of its other regular business is conducted.  The latter is clearly non-judicial and must be open to the public, while the former is indeed judicial in nature, as it affects the rights and liabilities of individuals" [60 AD 2d 409,418 (1978)].

Therefore, even if the PERB may deliberate in private, based upon the decision cited above, the act of voting or taking action must in my view occur during a meeting.

            I hope that I have been of assistance.  Should any further questions arise, please feel free to contact me.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

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