Your Right to Know

=20

New York State Open Government Laws

PDF of this = booklet=20 available >>

The Committee on Open Government

Freedom of Information Law=20
Open Meetings Law=20
Personal Privacy Protection Law

Robert J. Freeman, Executive = Director
Laura L. Anglin	Tedra L. Cobb
Lorraine A. = Cort=C3=A9s-V=C3=A1zquez	John C. Egan
Michelle K. Rea	Clifford=20 Richner

The Committee

    The Committee on Open Government is responsible = for=20 overseeing the implementation of the Freedom of Information Law (Public = Officers=20 Law, sections 84-90) and the Open Meetings Law (Public Officers Law, = sections=20 100-111). The Freedom of Information Law governs rights of access to = government=20 records, while the Open Meetings Law concerns the conduct of meetings of = public=20 bodies and the right to attend those meetings. The committee also = administers=20 the Personal Privacy Protection Law.
    The committee = is=20 composed of 11 members, 5 from government and 6 from the public. The = five=20 government members are the Lieutenant Governor, the Secretary of State, = whose=20 office acts as secretariat for the committee, the Commissioner of = General=20 Services, the Director of the Budget, and one elected local government = official=20 appointed by the Governor. Of the six public members, at least two must = be or=20 have been representatives of the news media. =
    The=20 Freedom of Information Law directs the committee to furnish advice to = agencies,=20 the public and the news media, issue regulations and report its = observations and=20 recommendations to the Governor and the Legislature annually. Similarly, = under=20 the Open Meetings Law, the committee issues advisory opinions, reviews = the=20 operation of the law and reports its findings and recommendations = annually to=20 the Legislature.
    When questions arise under = either=20 the Freedom of Information Law or the Open Meetings Law, the committee = can=20 provide written or oral advice and attempt to resolve controversies in = which=20 rights may be unclear. Since its creation in 1974, nearly 20,000 written = advisory opinions have been prepared by the committee at the = request of=20 government, the public and the news media. In addition, several thousand = oral=20 opinions have been provided by telephone.
    = If you=20 need advice regarding either the Freedom of Information Law or the Open = Meetings=20 Law, feel free to write to:

Committee on Open Government
NYS Department = of=20 State
One Commerce Plaza
99 Washington Ave =
Albany, NY=20 12231
or call (518) 474-2518
Fax (518) 474-1927

In addition, the opinions prepared since early 1993 = that=20 have educational or precedential value are identified by means of a = series of=20 key phrases in separate indices created in relation to the Freedom of=20 Information Law and the Open Meetings Law. The full text of those = opinions is=20 now available through the Department of State's website. To gain direct = access=20 to the text of the opinions and open government statutes, you can search = by=20 entering "Committee on Open Government" or by using the following = Internet=20 address:
http://www.dos.stat= e.ny.us/coog/coogwww.html=20

    Each index to advisory opinions will be = updated=20 periodically to ensure that interested persons and government agencies = will have=20 the ability to obtain opinions recently = rendered.
   In=20 addition to advisory opinions and the indices to opinions, the website = also=20 includes:
   -    the text of the = Freedom of=20 Information, Open Meetings and Personal Privacy Protection=20 laws;
   -    the rules and regulations = promulgated by the committee (21 NYCRR Part=20 1401);
   -    Your right to = know,=20 this guide to the Freedom of Information and Open Meetings=20 Laws;
   -    You should know, = which=20 describes the Personal Privacy Protection=20 Law;
   -    sample request for records = made=20 via e-mail;
   -    responses to "FAQs" = (frequently asked questions);
   -    = Food for=20 Thought, issues relating to e-mail;=20 and
   -   Annual Report to the = Governor and=20 the State Legislature.

Freedom of Information

The Freedom of Information Law, = effective=20 January 1, 1978, reaffirms your right to know how your government = operates. It=20 provides rights of access to records reflective of governmental = decisions and=20 policies that affect the lives of every New Yorker. The law preserves = the=20 Committee on Open Government, which was created by enactment of the = original=20 Freedom of Information Law in 1974.

Scope of the law
The law defines = "agency" to=20 include all units of state and local government in New York State, = including=20 state agencies, public corporations and authorities, as well as any = other=20 governmental entities performing a governmental function for the state = or for=20 one or more units of local government in the state (section=20 86(3)).
The term "agency" does not include the = State=20 Legislature or the courts. As such, for purposes of clarity, "agency" = will be=20 used hereinafter to include all entities of government in New York, = except the=20 State Legislature and the courts, both of which will be discussed later. =

What is a record?
The law defines = "record"=20 as "any information kept, held, filed, produced or reproduced by, with = or for an=20 agency or the State Legislature, in any physical form whatsoever. . ." = (section=20 86(4)). Thus it is clear that items such as tape recordings, microfilm = and=20 computer discs fall within the definition of "record." An agency is not = required=20 to create a new record or provide information in response to questions = to comply=20 with the law. However, the courts have held that an agency must provide = records=20 in the form requested if it has the ability to do so. For instance, if = records=20 are accessible on paper or on a computer tape or disk, the public may = choose to=20 obtain them either way.

Accessible records
   The original statute = granted=20 rights of access to nine specified categories of records to the = exclusion of all=20 others. Therefore, unless a record conformed to one of the categories of = accessible records, it was presumed deniable.
   The = current=20 law, reversing that presumption, states that all records are accessible, = except=20 records or portions of records that fall within one of nine categories = of=20 deniable records (section 87(2)).
   Deniable records = include=20 records or portions thereof that:
   (a) are = specifically=20 exempted from disclosure by state or federal = statute;
   (b)=20 would if disclosed result in an unwarranted invasion of personal = privacy; =20
   (c) would if disclosed impair present or imminent = contract=20 awards or collective bargaining negotiations; =
   (d)=20 are trade secrets or are submitted to an agency by a commercial = enterprise or=20 derived from information obtained from a commercial enterprise and which = if=20 disclosed would cause substantial injury to the competitive position of = the=20 subject enterprise;
   (e) are compiled for law = enforcement purposes and which if disclosed=20 would:
     i.    interfere = with law=20 enforcement investigations or judicial=20 proceedings;
     ii.   deprive a = person=20 of a right to a fair trial or impartial=20 adjudication;
     iii. identify a=20 confidential source or disclose confidential information relative to a = criminal=20 investigation; or
     iv. reveal = criminal=20 investigative techniques or procedures, except routine techniques and=20 procedures;
   (f) could if disclosed endanger = the life=20 or safety of any person;
   (g) are inter-agency or = intra-agency=20 communications, except to the extent that such materials consist=20 of:
     i.    statistical or = factual=20 tabulations or data;
     ii.  =20 instructions to staff that affect the=20 public;
     iii. final agency policy = or=20 determinations; or
     iv. external audits, = including but not limited to audits performed by the comptroller and the = federal=20 government;
    (h) are examination questions or = answers that=20 are requested prior to the final administration of such questions;=20 or
    (i) if disclosed, would jeopardize an = agency=E2=80=99s capacity=20 to guarantee the security of its information technology assets, such = assets=20 encompassing both electronic information systems and infrastructures;=20 or
    (j) are photographs, microphotographs, = videotape or=20 other recorded images prepared under authority of section eleven hundred = eleven-a of the vehicle and traffic law.
    The = categories of=20 deniable records are generally directed to the effects of disclosure. = They are=20 based in great measure upon the notion that disclosure would in some = instances=20 "impair," "cause substantial injury," "interfere," "deprive," = "endanger," etc.=20 This represents a significant change from the thrust of the original=20 enactment.
    One category of deniable records that = does not=20 deal directly with the effects of disclosure is exception (g), which = deals with=20 inter-agency and intra-agency materials. The intent of the exception is = twofold.=20 Memoranda or letters transmitted from an official of one agency to an = official=20 of another or between officials within an agency may be denied, so long = as the=20 communications (or portions thereof) are advisory in nature, such as = advice,=20 opinions or recommendations. For example, an opinion prepared by staff = which may=20 be rejected or accepted by the head of an agency need not be made = available.=20 However, the statistical or factual information, as well as the policies = and=20 determinations upon which an agency relies in carrying out its duties = should be=20 made available.
    There are also special provisions = in the=20 law regarding the protection of trade secrets and critical = infrastructure=20 information. Those provisions pertain only to state agencies and enable = a person=20 submitting records to state agencies to request that records be kept = separate=20 and apart from all other agency records on the ground that they = constitute trade=20 secrets. In addition, when a request is made for records falling within = these=20 special provisions, the submitter of such records is given notice and an = opportunity to justify a claim that the records would if disclosed = result in=20 substantial injury to his or her competitive position or other harm. A = member of=20 the public requesting records may challenge such a = claim.
   =20 Generally, the law provides access to existing records. Therefore, an = agency=20 need not create a record in response to a request. Nevertheless, each = agency=20 must maintain the following records (section 87(3)): =20
    (a) a record of the final vote of each member in = every=20 agency proceeding in which the member votes;
    (b) a = record=20 setting forth the name, public office address, title and salary of every = officer=20 or employee of the agency; and
    (c) reasonably = detailed=20 current list by subject matter of all records in possession of an = agency,=20 whether or not the records are accessible.

Protection of privacy

One of the = exceptions to=20 rights of access, referred to earlier, states that records may be = withheld when=20 disclosure would result in "an unwarranted invasion of personal privacy" = (section 87(2)(b)).
Unless otherwise deniable, = disclosure=20 shall not be construed to constitute an unwarranted invasion of personal = privacy=20 when identifying details are deleted, when the person to whom a record = pertains=20 consents in writing to disclosure, or when upon presenting reasonable = proof of=20 identity, a person seeks access to records pertaining to him or = her.

How to Obtain Records

Subject matter list
As noted earlier, = each=20 agency must maintain a "subject matter list." The list is not a = compilation of=20 every record an agency has in its possession, but rather is a list of = the=20 subjects or file categories under which records are kept. It must make = reference=20 to all records in possession of an agency, whether or not the records = are=20 available. You have a right to know the kinds of records agencies=20 maintain.
The subject matter list must be = compiled=20 in sufficient detail to permit you to identify the file category of the = records=20 sought.

Regulations
Each agency must = adopt=20 standards based upon general regulations issued by the committee. These=20 procedures describe how you can inspect and copy records. The = Committee=E2=80=99s=20 regulations and a model designed to enable agencies to easily comply are = available on request and on the Committee=E2=80=99s website.

Designation of records access officer
    = Under the=20 regulations, each agency must appoint one or more persons as records = access=20 officer. The records access officer has the duty of coordinating an = agency=E2=80=99s=20 response to public requests for records.
    The = records=20 access officer is responsible for responding to requests directly or = ensuring=20 that agency personnel keep the subject matter list up to date, assist = you in=20 identifying records sought, make the records promptly available or deny = access=20 in writing, provide copies of records or permit you to make copies, = certifying=20 that a copy is a true copy and, if the records cannot be found, certify = either=20 that the agency does not have possession of the requested records or = that the=20 agency does have the records, but they cannot be found after diligent=20 search.
    The regulations also state that the = public=20 shall continue to have access to records through officials who have been = authorized previously to make information available.

Requests for records
    An agency may ask = you to=20 make your request in writing. The law requires you to "reasonably = describe" the=20 record in which you are interested (section 89(3)). Whether a request = reasonably=20 describes records often relates to the nature of an agency=E2=80=99s = filing or=20 recordkeeping system. If records are kept alphabetically, a request for = records=20 involving an event occurring on a certain date might not reasonably = describe the=20 records. Locating the records in that situation might involve a search = for the=20 needle in the haystack, and an agency is not required to engage in that = degree=20 of effort. The responsibility of identifying and locating records sought = rests=20 to an extent upon the agency. If possible, you should supply dates, = titles, file=20 designations, or any other information that will help agency staff to = locate=20 requested records, and it may be worthwhile to find out how an agency = keeps the=20 records of your interest (i.e., alphabetically, chronologically = or by=20 location) so that a proper request can be made.
   The = law=20 also provides that agencies must accept requests and transmit records = requested=20 via email when they have the ability to do so. For additional guidance=20 concerning email requests, see the website.
    = Within five=20 business days of the receipt of a written request for a record = reasonably=20 described, the agency must make the record available, deny access in = writing=20 giving the reasons for denial, or furnish a written acknowledgment of = receipt of=20 the request and a statement of the approximate date when the request = will be=20 granted or denied, which must be reasonable in consideration of = attendant=20 circumstances, such as the volume or complexity of the request. The = approximate=20 date ordinarily cannot exceed 20 business days from the date of the=20 acknowledgment of the receipt of a request. If it is known within five = business=20 days of receipt of the request that more than 20 business days will be = needed to=20 grant a request in whole or in part, the agency=E2=80=99s acknowledgment = must explain=20 the reason and provide a specific date within which it will grant = access.=20 Similarly, if the agency acknowledges the receipt of a request and = provides an=20 approximate date within 20 business days that cannot be met, it is = required to=20 inform the person requesting the record, indicating the reason for the = delay,=20 and provide a specific date when it will grant access. When a specific = date=20 beyond 20 business days is given, it must be reasonable in relation to = the=20 circumstances of the request.
   If the agency fails = to abide=20 by any of the requirements concerning the time within which it must = respond to a=20 request, the request is deemed denied, and the person seeking the = records may=20 appeal the denial.

Fees
Copies of records must be made = available on=20 request. Except when a different fee is prescribed by statute, an agency = may not=20 charge for inspection, certification or search for records, or charge in = excess=20 of 25 cents per photocopy up to 9 by 14 inches (section 87(1)(b)(iii)). = Fees for=20 copies of other records may be charged based upon the actual cost of=20 reproduction.

Denial of access and appeal
    Unless a = denial of a=20 request occurs due to a failure to respond in a timely manner, a denial = of=20 access must be in writing, stating the reason for the denial and = advising you of=20 your right to appeal to the head or governing body of the agency or the = person=20 designated to determine appeals by the head or governing body of the = agency. You=20 may appeal within 30 days of a denial.
    Upon = receipt of the=20 appeal, the agency head, governing body or appeals officer has 10 = business days=20 to fully explain in writing the reasons for further denial of access or = to=20 provide access to the records. Copies of all appeals and the = determinations=20 thereon must be sent by the agency to the Committee on Open Government = (section=20 89(4)(a)). This requirement will enable the committee to monitor = compliance with=20 law and intercede when a denial of access may be improper. A failure to=20 determine an appeal within 10 business days of its receipt is considered = a=20 denial of the appeal.
    You may seek judicial review = of a=20 final agency denial by means of a proceeding initiated under Article 78 = of the=20 Civil Practice Law and Rules. When a denial is based upon one of the = exceptions=20 to rights of access that were discussed earlier, the agency has the = burden of=20 proving that the record sought falls within one or more of the = exceptions=20 (section 89(4)(b)).
    The Freedom of Information = Law=20 permits a court, in its discretion, to award reasonable = attorney=E2=80=99s fees to a=20 person denied access to records. To do so, a court must find that = the=20 person denied access "substantially prevailed", and either that the = agency had=20 no reasonable basis for denying access or that it failed to comply with = the time=20 limits for responding to a request or an appeal.

Access to Legislative Records

Section 88 of the Freedom of Information Law applies only to the = State=20 Legislature and provides access to the following records in its=20 possession:
    (a) bills, fiscal notes, = introducers=E2=80=99=20 bill memoranda, resolutions and index records; =
    (b)=20 messages received from the Governor or the other house of the = Legislature, as=20 well as home rule messages;
    (c) = legislative=20 notification of the proposed adoption of rules by an agency; =20
    (d) transcripts, minutes, journal records of = public=20 sessions, including meetings of committees, subcommittees and public = hearings,=20 as well as the records of attendance and any votes = taken;
   =20 (e) internal or external audits and statistical or factual = tabulations of,=20 or with respect to, material otherwise available for public inspection = and=20 copying pursuant to this section or any other applicable provision of = law; =20
    (f) administrative staff manuals and instructions = to=20 staff that affect the public;
    (g) final = reports and=20 formal opinions submitted to the Legislature; =
    (h)=20 final reports or recommendations and minority or dissenting reports and = opinions=20 of members of committees, subcommittees, or commissions of the = Legislature;=20 and
    (i) any other records made available by = any=20 other provision of law.
    In addition, each = house of=20 the Legislature must maintain and make available: =
   =20 (a) a record of votes of each member in each session, committee and = subcommittee=20 meeting in which the member votes;
    (b) a = payroll=20 record setting forth the name, public office address, title and salary = of every=20 officer or employee; and
    (c) a current list, = reasonably=20 detailed, by subject matter of any record required to be made available = by=20 section 88.
    Each house is required to issue = regulations=20 pertaining to the procedural aspects of the law. Requests should be = directed to=20 the public information officers of the respective houses.

Access to Court Records

Although the courts are not subject to the Freedom of Information = Law,=20 section 255 of the Judiciary Law has long required the clerk of a court = to=20 "diligently search the files, papers, records and dockets in his office" = and=20 upon payment of a fee make copies of such items. =
=20 Agencies charged with the responsibility of administering the judicial = branch=20 are not courts and therefore are treated as agencies subject to the = Freedom of=20 Information Law.

Sample Letters

Requesting Records

Records Access Officer
Name of=20 Agency
Address of Agency
City, NY, ZIP=20 code

R= e:=20 Freedom of=20 Information
&nbs= p;Law=20 Request
Records Access Officer:

Records Access Officer:
    = Under the=20 provisions of the New York Freedom of Information Law, Article 6 of the = Public=20 Officers Law, I hereby request records or portions thereof pertaining to = (or=20 containing the following) __________________ (attempt to = identify=20 the records in which you are interested as clearly as possible). If my = request=20 appears to be extensive or fails to reasonably describe the records, = please=20 contact me in writing or by phone at _______________=20 .
    If there are any fees for copying the = records=20 requested, please inform me before filling the request (or: ... please = supply=20 the records without informing me if the fees are not in excess of=20 $____).
    As you know, the Freedom of = Information=20 Law requires that an agency respond to a request within five business = days of=20 receipt of a request. Therefore, I would appreciate a response as soon = as=20 possible and look forward to hearing from you shortly.
If for any = reason any=20 portion of my request is denied, please inform me of the reasons for the = denial=20 in writing and provide the name and address of the person or body to = whom an=20 appeal should be=20 directed.
        &nb= sp; =20 Sincerely,
        &n= bsp; =20 Signature
        &nb= sp; =20 Name
         &n= bsp;=20 Address
         = ; =20 City, State, ZIP code

Appeal A Denial

Name of Agency Official
Appeals = Officer
Name of=20 Agency
Address of Agency
City, NY, ZIP=20 code
         &n= bsp; =20 Re: Freedom of=20 Information
        &= nbsp;    =20 Law Appeal
Dear __________:
    I = hereby=20 appeal the denial of access regarding my request, which was made on = __________=20 (date) and sent to __________ (records access officer, name and address = of=20 agency).
    The records that were = denied=20 include:_______________ (describe the records that were denied to the = extent=20 possible).
    As required by the = Freedom of=20 Information Law, the head or governing body of an agency, or whomever is = designated to determine appeals, is required to respond within 10 = business days=20 of the receipt of an appeal. If the records are denied on appeal, please = explain=20 the reasons for the denial fully in writing as required by law.=20
    In addition, please be advised that the = Freedom=20 of Information Law directs that all appeals and the determinations that = follow=20 be sent to the Committee on Open Government, Department of State, One = Commerce=20 Plaza, 99 Washington Ave., Albany, New York 12231.

          =20 Sincerely,
        &n= bsp; =20 Signature
        &nb= sp; =20 Name
         &n= bsp;=20 Address
         = ; =20 City, State, ZIP code

Open Meetings

The Open Meetings or "Sunshine" Law went into effect in New York in = 1977.=20 Amendments that clarify and reaffirm your right to hear the = deliberations of=20 public bodies became effective on October 1, 1979. =
=20 In brief, the law gives the public the right to attend meetings of = public=20 bodies, listen to the debates and watch the decisionmaking process in=20 action.
As stated in the legislative declaration = in the=20 Open Meetings Law (section 100): "It is essential to the maintenance of = a=20 democratic society that the public business be performed in an open and = public=20 manner and that the citizens of this state be fully aware of and able to = observe=20 the performance of public officials and attend and listen to the = deliberations=20 and decisions that go into the making of public policy."

What is a meeting?
    Although the = definition of=20 "meeting" was vague as it appeared in the original law, the amendments = to the=20 law clarify the definition in conjunction with expansive interpretations = of the=20 law given by the courts. "Meeting" is defined to mean "the official = convening of=20 a public body for the purpose of conducting public business." As such, = any time=20 a quorum of a public body gathers for the purpose of discussing public = business,=20 the meeting must be convened open to the public, whether or not there is = an=20 intent to take action, and regardless of the manner in which the = gathering may=20 be characterized. The definition also authorizes members of public = bodies=20 to conduct meetings by videoconference.
    Since the = law=20 applies to "official" meetings, chance meetings or social gatherings are = not=20 covered by the law.
   Also, the law is silent with = respect=20 to public participation. Therefore, a public body may permit you to = speak at=20 open meetings, but is not required to do so.

What is covered by the law?
The law = applies to=20 all public bodies. "Public body" is defined to cover entities consisting = of two=20 or more people that conduct public business and perform a governmental = function=20 for the state, for an agency of the state, or for public corporations, = including=20 cities, counties, towns, villages and school districts, for example. In=20 addition, committees and subcommittees consisting solely of members of a = governing body are specifically included within the definition. = Consequently,=20 city councils, town boards, village boards of trustees, school boards,=20 commissions, legislative bodies and sub/committees of those groups all = fall=20 within the framework of the law.

Notice of Meetings
    The law requires that = notice=20 of the time and place of all meetings be given prior to every = meeting. =20
    If a meeting is scheduled at least a week in = advance,=20 notice must be given to the public and the news media not less than 72 = hours=20 prior to the meeting. Notice to the public must be accomplished by = posting in=20 one or more designated public locations.
    = When a=20 meeting is scheduled less than a week in advance, notice must be given = to the=20 public and the news media "to the extent practicable" at a reasonable = time prior=20 to the meeting. Again, notice to the public must be given by means of = posting.=20
    If videoconferencing is used to conduct a = meeting, the=20 public notice for the meeting must inform the public that = videoconferencing will=20 be used, identify the locations for the meeting, and state that the = public has=20 the right to attend the meeting at any of the locations.

When can a meeting be closed?
    The law = provides=20 for closed or "executive" sessions under circumstances prescribed in the = law. It=20 is important to emphasize that an executive session is not separate from = an open=20 meeting, but rather is defined as a portion of an open meeting during = which the=20 public may be excluded.
    To close a meeting for = executive=20 session, the law requires that a public body take several procedural = steps.=20 First, a motion must be made during an open meeting to enter into = executive=20 session; second, the motion must identify "the general area or areas of = the=20 subject or subjects to be considered;" and third, the motion must be = carried by=20 a majority vote of the total membership of a public body. =
   =20 Further, a public body cannot close its doors to the public to discuss = the=20 subject of its choice, for the law specifies and limits the subject = matter that=20 may appropriately be discussed in executive session. The eight subjects = that may=20 be discussed behind closed doors include:
    (a) = matters=20 which will imperil the public safety if disclosed; =
    (b)=20 any matter which may disclose the identity of a law enforcement agency = or=20 informer;
    (c) information relating to current or = future=20 investigation or prosecution of a criminal offense which would imperil = effective=20 law enforcement if disclosed;
    (d) discussions = regarding=20 proposed, pending or current litigation;
    (e) = collective=20 negotiations pursuant to Article 14 of the Civil Service Law (the Taylor = Law);=20
    (f) the medical, financial, credit or employment = history=20 of a particular person or corporation, or matters leading to the = appointment,=20 employment, promotion, demotion, discipline, suspension, dismissal or = removal of=20 a particular person or corporation;
    (g) the = preparation,=20 grading or administration of examinations; and
    = (h) the=20 proposed acquisition, sale or lease of real property or the proposed = acquisition=20 of securities, or sale or exchange of securities held by such public = body, but=20 only when publicity would substantially affect the value=20 thereof.
    These are the only subjects that may be = discussed=20 behind closed doors; all other deliberations must be conducted during = open=20 meetings.
    It is important to point out that a = public body=20 can never vote to appropriate public monies during a closed session. = Therefore,=20 although most public bodies may vote during a properly convened = executive=20 session, any vote to appropriate public monies must be taken in public.=20
    The law also states that an executive session can = be=20 attended by members of the public body and any other persons authorized = by the=20 public body.

After the meeting =E2=80=94 minutes
    If = you cannot attend=20 a meeting, you can still find out what actions were taken, because the = Open=20 Meetings Law requires that minutes of both open meetings and executive = sessions=20 must be compiled and made available.
    Minutes of an = open=20 meeting must consist of "a record or summary of all motions, proposals,=20 resolutions and any matter formally voted upon and the vote thereon." = Minutes of=20 executive sessions must consist of "a record or summary of the final=20 determination" of action that was taken, "and the date and vote = thereon."=20 Therefore, if, for example, a public body merely discusses a matter = during=20 executive session, but takes no action, minutes of an executive session = need not=20 be compiled. However, if action is taken, minutes of the action taken = must be=20 compiled and made available.
    It is also important = to=20 point out that the Freedom of Information Law requires that a voting = record must=20 be compiled that identifies how individual members voted in every = instance in=20 which a vote is taken. Consequently, minutes that refer to a four to = three vote=20 must also indicate who voted in favor, and who voted against.

Enforcement of the law
     What can be = done if=20 a public body holds a secret meeting? What if a public body makes a = decision=20 during an executive session that should have been open? =
   =20 Any "aggrieved" person can bring a lawsuit. Since the law says that = meetings are=20 open to the general public, you would be aggrieved if you feel that you = have=20 been improperly excluded from a meeting or if you believe that an = executive=20 session was held that should have been open.
    Upon = the=20 judicial challenge, a court has the power to nullify action taken by a = public=20 body in violation of the law "upon good cause shown." In addition, a = court also=20 has the authority to award reasonable attorney fees to the successful = party.=20 This means that if you go to court and you win, a court may (but need = not)=20 reimburse you for your expenditure of legal fees.
    = It is=20 noted that an unintentional failure to fully comply with the notice = requirements=20 "shall not alone be grounds for invalidating action taken at a meeting = of a=20 public body."

The site of meetings
As specified = earlier, all=20 meetings of a public body are open to the general public. Moreover, the = law=20 requires that public bodies make reasonable efforts to ensure that = meetings are=20 held in facilities that permit "barrier-free physical access" to = physically=20 handicapped persons.

Exemptions from the law
    The Open = Meetings Law=20 does not apply to:
   (1) judicial or = quasi-judicial=20 proceedings, except proceedings of zoning boards of appeals; =
  =20 (2) deliberations of political committees, conferences and = caucuses; or=20
   (3) matters made confidential by federal or = state law.=20
    Stated differently, the law does not apply to = proceedings=20 before a court or before a public body that acts in the capacity of a = court, to=20 political caucuses, or to discussions concerning matters that might be = made=20 confidential under other provisions of law. For example, federal law = requires=20 that records identifying students be kept confidential. As such, a = discussion of=20 records by a school board regarding a particular student would = constitute a=20 matter made confidential by federal law that would be exempt from the = Open=20 Meetings Law.

Public Participation and recording = meetings
The=20 Open Meetings Law provides the public with the right to attend meetings = of=20 public bodies, but it is silent concerning the ability of members of the = public=20 to speak or otherwise participate. Although public bodies are not = required to=20 permit the public to speak at their meetings, many have chosen to do so. = In=20 those instances, it has been advised that a public body should do so by = adopting=20 reasonable rules that treat members of the public=20 equally.
There is nothing in the Open Meetings Law = dealing=20 with the right of those in attendance to record meetings. However, = judicial=20 decisions indicate that any person present may record an open meeting = (using=20 either an audio or video recorder), so long as use of a recording = device=20 is not disruptive or obtrusive.

Revised, February 2008