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From: Freeman, Robert (DOS)
Sent: Friday, May 06, 2011 12:32 PM
Subject:    RE: Open meetings law Question

 

I have received your communication and apologize for the delay in response. 

With respect to the issues that were highlighted, I offer the following comments.

First, it is true that the Committee on Open Government is not empowered to enforce the Open Meetings Law or compel compliance with that statute.  As you are aware, however, this office responds to thousands of verbal inquiries and prepares hundreds of advisory legal opinions annually. 
Although the opinions are not binding, it is our hope that they are educational and persuasive, and that they encourage knowledge of and compliance with law.  I note, too, that the courts have frequently cited and relied on our opinions as the basis for their determinations.

Second, I believe that §110 of the Open Meetings Law serves to prevent the outcome that your constituent has suggested. 

Subdivision (1) of §110 states that:

“Any provision of a charter, administrative code, local law, ordinance or rule or regulation affecting a public body which is more restrictive than with respect to public access than this article shall be deemed superseded hereby to the extent that such provision is more restrictive than this article.”

Stated differently, a local enactment or a regulation promulgated by a state agency cannot diminish or restrict public access in a manner that provides less access than the Open Meetings Law.  For example, the Open Meetings Law, §105(1) specifies eight grounds for entry into an executive session.  Subdivision (1) essentially nullifies any provision that would add to the grounds for closing meetings.  Similarly, §106 requires that minutes of meetings be prepared and made available on request within
two weeks of the meetings to which they pertain.  Subdivision (1) would invalidate a local enactment, rule or policy stating that minutes will not be available until a month after a meeting or until they are approved.

In contrast, subdivision (2) of §110 states that:

“Any provision of general, special or local law or charter, administrative code, ordinance, or rule or regulation less restrictive with respect to public access than this article shall not be deemed superseded hereby.”

Further, subdivision (3) states that:

“Notwithstanding any provision of this article to the contrary, a public body may adopt provisions less restrictive with respect to public access than this article.”

Therefore, a public body by means of a local enactment could require that certain topics be discussed in public,  even though §105(1) of the Open Meetings Law would permit an executive session to be held.  In like manner, although the Open Meetings Law requires that minutes be prepared and made available within two weeks of meetings, a public body could enact a requirement that minutes be prepared within one week of meetings.  Those kinds of provisions would be “less restrictive with respect to public access” than the Open Meetings Law and would remain in effect, notwithstanding related elements of the Open Meetings Law. 

I hope that the foregoing serves to clarify understanding of the Open Meetings Law and that I have been of assistance.  If you would like to share this opinion, please feel free to do so as you see fit.

Sincerely,
Bob Freeman

Robert J. Freeman
Executive Director
Committee on Open Government
Department of State
One Commerce Plaza
Suite 650
99 Washington Avenue
Albany, NY 12231
Phone:  (518)474-2518
Fax: (518)474-1927
Website: www.dos.ny.gov/coog/index/html