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New York State Open Government Laws =
The Committee on Open = Government - Robert J. Freeman, Executive Director
The Committee
The Committee on Open Government is responsible for =
overseeing implementation of the Freedom of Information Law (Public =
Officers Law=20
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 =
oversees the=20
Personal Privacy Protection Law.
The Committee is =
composed=20
of 11 members, 5 from government and 6 from the public. The five =
government=20
members are the Lieutenant Governor, the Secretary of State, whose =
office acts=20
as secretariat for the Committee, the Commissioner of General Services, =
the=20
Director of the Budget, and one elected local government official =
appointed by=20
the Governor. Of the six public members, at least two must be or have =
been=20
representatives of the news media.
The Freedom of=20
Information Law (=E2=80=9CFOIL=E2=80=9D) 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 or the Open Meetings Law, the Committee staff =
can=20
provide written or oral advice and attempt to resolve controversies in =
which=20
rights may be unclear. Since its creation in 1974, more than 24,000 =
written=20
advisory opinions have been prepared by the Committee at the =
request of=20
government, the public and the news media. In addition, hundreds of =
thousands of=20
verbal opinions have been provided by telephone. Staff also =
provides=20
training and educational programs for government, public interest and =
news media=20
organizations, as well as students on =
campus.
Opinions=20
prepared since early 1993 that have educational or precedential value =
are=20
maintained online, identified by means of a series of key phrases in =
separate=20
indices created in relation to the Freedom of Information Law and the =
Open=20
Meetings Law.
The indexes can be accessed at the =
following=20
links:
FOIL =
Advisory=20
Opinions &=
nbsp; &n=
bsp; =20
OML =
Advisory=20
Opinions
Each index to advisory opinions is updated =
periodically to=20
ensure that interested persons and government agencies have the ability =
to=20
obtain opinions recently rendered.
The website also includes the following:
The text of the =
Freedom of=20
Information Law;
Rules and =
Regulations of=20
the Committee on Open Government (21 NYCRR Part 1401);
Model=20
Rules for Agencies;
Sample=20
Request for Records;
Sample=20
Request for Records via Email;
=
Sample=20
Appeal;
Sample=20
Appeal When Agency Fails to Respond in a Timely Manner;
FOIL Case Law =
Summary;
Frequently =
Asked=20
Questions regarding FOIL;
The text =
of the=20
Open Meetings Law;
Model=20
Rules for Public Bodies;
An =
Article on=20
Boards of Ethics;
OML Case Law=20
Summary;
Frequentl=
y Asked=20
Questions regarding OML;
The text of the =
Personal=20
Privacy Protection Law (only applies to State Agencies);
You Should =
Know, regarding the =
Personal=20
Privacy Protection Law.
If you are unable to locate information on the = website and=20 need advice regarding either the Freedom of Information Law or the Open = Meetings=20 Law, feel free to contact:
Committee on Open Government
NYS Department =
of=20
State
One Commerce Plaza
99 Washington Ave =
Albany, NY=20
12231
(518) 474-2518 Tel
(518) 474-1927 =
Fax
coog@dos.state.ny.us
Freedom of Information
FOIL affirms your right to know how = your=20 government operates. It provides rights of access to records reflective = of=20 governmental decisions and policies that affect the lives of every New = Yorker.=20 The law continues the existence of the Committee on Open Government, = which was=20 created by enactment of the original Freedom of Information Law in = 1974.
Scope of the law
All =
agencies=20
are subject to the Freedom of Information Law, and FOIL 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 (=C2=A786(3)).=
The=20
term "agency" does not include the State Legislature or the courts. For =
purposes=20
of clarity, "agency" will be used hereinafter to include all entities of =
government in New York, except the State Legislature and the courts, =
which will=20
be discussed later.
What is a record?
All records are =
subject=20
to the FOIL, and the law defines "record" as "any information kept, =
held, filed,=20
produced or reproduced by, with or for an agency or the State =
Legislature, in=20
any physical form whatsoever. . ." (=C2=A786(4)).=
It is clear=20
that items such as audio or visual recordings, data maintained =
electronically,=20
and paper records fall within the definition of "record." An agency is =
not=20
required to create a new record or provide information in response to =
questions=20
to comply with the law; however, the courts have held that an agency =
must=20
provide records in the form requested if it has the ability to do so. =
For=20
instance, if the agency can transfer data into a requested format, the =
agency=20
must do so upon payment of the proper fee.
Accessible records
FOIL is based on a =
presumption of=20
access, stating that all records are accessible, except records or =
portions of records that fall within one of eleven categories of =
deniable=20
records (=C2=A787(2))=
.
Deniable=20
records include records or portions thereof =
that:
(a) are=20
specifically exempted from disclosure by state or federal=20
statute;
(b) would if disclosed result in an =
unwarranted=20
invasion of personal privacy;
(c) would if =
disclosed=20
impair present or imminent contract awards or collective bargaining=20
negotiations;
(d) are trade secrets or are =
submitted=20
to an agency by a commercial enterprise or derived from information =
obtained=20
from a commercial enterprise and which if disclosed would cause =
substantial=20
injury to the competitive position of the subject enterprise; =20
(e) are compiled for law enforcement purposes and =
which if=20
disclosed would:
i. =
interfere=20
with law 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; or =
* (j) are photographs, microphotographs, videotape or =
other =20
recorded images prepared under authority of =
section=20
eleven hundred eleven-a of the vehicle and traffic law.
* NB =
Repealed=20
December 1, 2014
* (k) are photographs, microphotographs, videotape =
or =20
other recorded images prepared under =
authority of=20
section eleven hundred eleven-b of the vehicle and traffic =
law.
* NB=20
Repealed December 1, 2014
* (l) are photographs, microphotographs, =
videotape=20
or other recorded images produced by a bus lane =
photo=20
device prepared under authority of section eleven hundred eleven-c =
of the=20
vehicle and traffic law.
* NB Repealed September 20, 2015
The categories of deniable records generally =
involve=20
potentially harmful effects of disclosure. They are based in great =
measure upon=20
the notion that disclosure would in some instances "impair," "cause =
substantial=20
injury," "interfere," "deprive," "endanger," etc.
=
One=20
category of deniable records that does not deal directly with the =
effects of=20
disclosure is exception =
(g),=20
which deals with inter-agency and intra-agency materials. The intent of =
the=20
exception is twofold. Written communications transmitted from an =
official of one=20
agency to an official of another or between officials within an agency =
may be=20
denied insofar as they consist of advice, opinions or recommendations. =
For=20
example, an opinion prepared by staff which may be rejected or accepted =
by the=20
head of an agency need not be made available. Statistical or factual=20
information, on the other hand, as well as the policies and =
determinations upon=20
which an agency relies in carrying out its duties are available, unless =
a=20
different exception applies.
=
There are=20
also special provisions in the law regarding the protection of trade =
secrets=20
and critical infrastructure information. Those provisions pertain =
only to=20
state agencies and enable a business entity submitting records to state =
agencies=20
to request that records be kept separate and apart from all other agency =
records. When a request is made for records falling within these special =
provisions, the submitter of such records is given notice and an =
opportunity to=20
justify a claim that the records would if disclosed result in =
substantial injury=20
to the competitive position of commercial enterprise. A member of the =
public=20
requesting records may challenge such a claim. =
Generally,=20
the law applies to existing records. Therefore, an agency need not =
create a=20
record in response to a request. Nevertheless, each agency must maintain =
the=20
following records:
(a) a record of the =
final vote=20
of each member in every agency proceeding in which the member=20
votes;
(b) a record setting forth the name, public =
office=20
address, title and salary of every officer or employee of the agency;=20
and
(c) reasonably detailed current list by =
subject matter=20
of all records in possession of an agency, whether or not the records =
are=20
accessible. (=C2=A787(3))=
Protection of privacy
One of the exceptions to =
rights=20
of access referenced earlier states that records may be withheld when =
disclosure=20
would result in "an unwarranted invasion of personal privacy" (=C2=A787(2)(b))=
.
=20
Unless otherwise deniable, disclosure shall not be construed to =
constitute an=20
unwarranted invasion of personal privacy when identifying details are =
deleted,=20
when the person to whom a record pertains consents in writing to =
disclosure, or=20
when upon presenting reasonable proof of identity, a person seeks access =
to=20
records pertaining to him or herself.
When a request is =
made for=20
records that constitute a list of names and home addresses or its =
equivalent,=20
the agency is permitted to require that the applicant certify that such =
list=20
will not be used for solicitation or fund-raising purposes and will not =
sell,=20
give or otherwise make available such lists to any other person for the =
purpose=20
of allowing that person to use such list for solicitation or =
fund-raising=20
purposes (=C2=A789(3)(a)=
A>).
=20
Since 2010, agencies have been prohibited from intentionally releasing =
social=20
security numbers to the public (=C2=A796-a).<=
BR>
How to Obtain Records
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 the Committee=E2=80=99s website. See Regulations of =
the=20
Committee on Open Government and Model=20
Rules for Agencies.
Designation of records access =
officer
Under the=20
Committee=E2=80=99s regulations, each agency must appoint one or more =
persons as records=20
access officer. The records access officer has the duty of coordinating =
an=20
agency=E2=80=99s response to public requests for records in a timely =
fashion. In=20
addition, the records access officer is responsible for ensuring that =
agency=20
personnel assist in identifying records sought, make the records =
promptly=20
available or deny access in writing, provide copies of records or permit =
you to=20
make copies, certifying that a copy is a true copy and, if the records =
cannot be=20
found, certify either that the agency does not have possession of the =
requested=20
records or that the agency does have the records, but they cannot be =
found after=20
diligent search.
The regulations also state =
that=20
the public shall continue to have access to records through officials =
who have=20
been authorized previously to make information available.
Requests for records
An agency may ask =
you to=20
make your request in writing. See Sample=20
Request for Records. The law requires you to "reasonably =
describe" the=20
record in which you are interested (section =
89(3)(a)).=20
Whether a request reasonably describes records often relates to the =
nature of an=20
agency=E2=80=99s filing or recordkeeping system. If records are kept =
alphabetically, a=20
request for records involving an event occurring on a certain date might =
not=20
reasonably describe the records. Locating the records in that situation =
might=20
involve a search for the needle in the haystack, and an agency is not =
required=20
to engage in that degree of effort. The responsibility of identifying =
and=20
locating records sought rests to an extent upon the agency. If possible, =
you=20
should supply dates, titles, file designations, or any other information =
that=20
will help agency staff to locate requested records, and it may be =
worthwhile to=20
find out how an agency keeps the records of your interest =
(i.e.,=20
alphabetically, chronologically or by location) so that a proper request =
can be=20
made.
The law also provides that agencies must =
accept=20
requests and transmit records requested via email when they have the =
ability to=20
do so. See Sample=20
Request for Records via Email.
Within five =
business=20
days of the receipt of a written request for a record reasonably =
described, the=20
agency must make the record available, deny access in writing giving the =
reasons=20
for denial, or furnish a written acknowledgment of receipt of the =
request and a=20
statement of the approximate date when the request will be granted or =
denied,=20
which must be reasonable in consideration of attendant circumstances, =
such as=20
the volume or complexity of the request. The approximate date ordinarily =
cannot=20
exceed 20 business days from the date of the acknowledgment of the =
receipt of a=20
request. If it is determined 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 a =
request in=20
whole or in part. When a response is delayed beyond five business days, =
it must=20
be reasonable in relation to the circumstances of the=20
request.
If the agency fails to abide by any of the =
requirements concerning the time within which it must respond to a =
request, the=20
request is deemed denied, and the person seeking the records may appeal =
the=20
denial. For more information, see Explanation =
of Time=20
Limits for Responding to Requests.
Fees
Copies of records must be made =
available on=20
request. Except when a different fee is prescribed by statute (an act of =
the=20
State Legislature), an agency may not charge for inspection, =
certification or=20
search for records, or charge in excess of 25 cents per photocopy up to =
9 by 14=20
inches (=C2=A787(1)(b)(ii=
i)). Fees=20
for copies of other records may be charged based upon the actual cost of =
reproduction. There may be no basis to charge for copies of =
records that=20
are transmitted electronically; however, when requesting electronic =
data, there=20
are occasions when the agency can charge for employee time spent =
preparing the=20
electronic data. For more information see 2008 News/Fees =
for=20
Electronic Information.
Denial of access and appeal
Unless =
a denial=20
of a 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 appeals and the determinations =
thereon=20
must be sent by the agency to the Committee on Open Government (=C2=A789(4)(a)=
A>). A failure=20
to 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 on an exception to =
rights=20
of access, the agency has the burden of proving that the record sought =
falls=20
within the exception (=C2=A789(4)(b)=
A>).=20
The Freedom of Information Law permits a court, =
in its=20
discretion, to award reasonable attorney=E2=80=99s fees to a person =
denied access to=20
records. To do so, a court must find that the person denied access =
"substantially prevailed", and either that the agency had no reasonable =
basis=20
for denying access or that it failed to comply with the time limits for=20
responding to a request or an appeal.
Access to Legislative = Records
Section =
88 of=20
the Freedom of Information Law applies only to the State Legislature and =
provides access to the following records in its possession: =20
(a) bills, fiscal notes, introducers=E2=80=99 =
bill memoranda,=20
resolutions and index records;
(b) messages =
received from the Governor or the other house of the Legislature, as =
well as=20
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.
Requesting Records (Sample)
Records Access = OfficerRecords 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 =
the=20
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
Requesting Records via=20
Email (Sample)
(It has been suggested that agencies =
create an=20
email address dedicated to the receipt of requests. It is recommended =
that you=20
review the website of the agency maintaining the records that you seek =
in order=20
to locate its email address and its records access officer.)
(The =
subject=20
line of your request should be "FOIL Request".)
Dear Records =
Access=20
Officer:
Please email the following records if possible =
(include=20
as much detail about the record as possible, such as relevant dates, =
names,=20
descriptions, etc.):
OR
Please advise =
me of the=20
appropriate time during normal business hours for inspecting the =
following=20
records prior to obtaining copies (include as much detail about the =
records as=20
possible, including relevant dates, names, descriptions, etc.):=20
OR
Please inform me of the cost of =
providing=20
paper copies of the following records (include as much detail about the =
records=20
as possible, including relevant dates, names, descriptions, etc.).=20
AND/OR
If all of the requested records cannot be =
emailed=20
to me, please inform me by email of the portions that can be emailed and =
advise=20
me of the cost for reproducing the remainder of the records requested =
($0.25 per=20
page or actual cost of reproduction).
If the requested =
records=20
cannot be emailed to me due to the volume of records identified in =
response to=20
my request, please advise me of the actual cost of copying all records =
onto a CD=20
or floppy disk.
If my request is too broad or does not=20
reasonably describe the records, please contact me via email so that I =
may=20
clarify my request, and when appropriate inform me of the manner in =
which=20
records are filed, retrieved or generated.
If it is =
necessary to=20
modify my request, and an email response is not preferred, please =
contact me at=20
the following telephone number: _____________.
If for =
any reason=20
any portion of my request is denied, please inform me of the reasons for =
the=20
denial in writing and provide the name, address and email address of the =
person=20
or body to whom an appeal should be=20
directed.
(Name)
(Address, if records are to =
be=20
mailed).
Appeal A Written Denial = (Sample)
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 and, if possible, offer reasons for disagreeing with the =
denial, i.e.,=20
by attaching an opinion of the Committee on Open Government acquired for =
its=20
website).
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
Appeal A Denial due to an =
Agency=E2=80=99s=20
Failure to Respond in a Timely Manner (Sample)
FOIL Appeals Officer
Name of=20
Agency
Address of Agency
City, NY, ZIP =
code
Re: =
Freedom=20
of=20
Information
&=
nbsp; =20
Law Appeal
Dear =
__________:
=20
I requested (describe the records) by written request =
made on=20
__________ (date). More than five business days have passed since the =
receipt of=20
the request without having received a response=E2=80=A6 or=E2=80=A6 =
Although the receipt of the=20
request was acknowledged and I was informed that a response would be =
given by=20
__________ (date), no response has been given. Consequently, I consider =
the=20
request to have been denied, and I am appealing on that basis.
=
As required by the Freedom of Information Law, the =
head or=20
governing body of an agency, or whomever is designated to determine =
appeals, is=20
required to respond within 10 business days of the receipt of an appeal. =
If the=20
records are denied on appeal, please explain the reasons for the denial =
fully in=20
writing as required by law.
In addition, =
please=20
be advised that the Freedom of Information Law directs that all appeals =
and the=20
determinations that follow be sent to the Committee on Open Government,=20
Department of State, One Commerce Plaza, 99 Washington Ave., Albany, New =
York=20
12231.
&n=
bsp; =20
Sincerely,
&n=
bsp; =20
Signature
&nb=
sp; =20
Name
&n=
bsp;=20
Address
 =
; =20
City, State, ZIP code
Open Meetings
The Open Meetings Law, often known as the =E2=80=9CSunshine =
Law=E2=80=9D, went into effect in=20
1977. Amendments that clarify and reaffirm your right to hear the =
deliberations=20
of public bodies became effective in 1979.
=
In=20
brief, the law gives the public the right to attend meetings of public =
bodies,=20
listen to the debates and watch the decision making process in =
action. It=20
requires public bodies to provide notice of the times and places of =
meetings,=20
and keep minutes of all action taken.
As stated in =
the=20
legislative declaration in the Open Meetings Law (=C2=A7100<=
/A>): "It is=20
essential to the maintenance of a democratic society that the public =
business be=20
performed in an open and public manner and that the citizens of this =
state be=20
fully aware of and able to observe the performance of public officials =
and=20
attend and listen to the deliberations and decisions that go into the =
making of=20
public policy."
What is a meeting?
"Meeting" =
is=20
defined to mean "the official convening of a public body for the purpose =
of=20
conducting public business" (=C2=A7102(=
1)), and=20
has been expansively interpreted by the courts. Any time a quorum =
of a=20
public body gathers for the purpose of discussing public business, the =
meeting=20
must be convened open to the public, whether or not there is intent to =
take=20
action, and regardless of the manner in which the gathering may be=20
characterized. The definition also authorizes members of public =
bodies to=20
conduct meetings by videoconference. A meeting cannot validly be held by =
telephone or through the use of email.
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 the public =
to speak=20
at 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 (=C2=A7102(=
2)).=20
In addition, committees and subcommittees consisting solely of =
members of=20
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. Citizens advisory bodies and similar =
advisory=20
groups that are not created by law are not required to comply with the =
Open=20
Meetings Law.
Notice of Meetings
The law requires that =
notice=20
of the time and place of all meetings be given prior to every meeting =
(=C2=A7104<=
/A>). =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 and, when possible, =
online. =20
When a meeting is scheduled less than a week in =
advance,=20
notice must be given to the public and the news media "to the extent=20
practicable" at a reasonable time prior to the meeting. Again, notice to =
the=20
public must be given by means of posting in designated locations and =
online.=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 (=C2=A7105<=
/A>).=20
To hold an executive session, the law requires =
that a=20
public body take several procedural steps. First, a motion must be made =
during=20
an open meeting to enter into executive session; second, the motion must =
identify "the general area or areas of the subject or subjects to be=20
considered;" and third, the motion must be carried by a majority vote of =
the=20
total membership of a public body.
A public body =
cannot=20
close its doors to the public to discuss the subject of its choice, for =
the law=20
specifies and limits the subject matter that may appropriately be =
discussed in=20
executive session. The eight areas that may be discussed behind closed =
doors=20
include:
(a) matters which will imperil the =
public safety=20
if disclosed;
(b) any matter which may disclose =
the=20
identity of a law enforcement agency or informer;
=
(c)=20
information relating to current or future investigation or prosecution =
of a=20
criminal offense which would imperil effective law enforcement if =
disclosed;=20
(d) discussions regarding proposed, pending or =
current=20
litigation;
(e) collective negotiations pursuant =
to=20
Article 14 of the Civil Service Law (the Taylor Law); =
(f)=20
the medical, financial, credit or employment history of a particular =
person or=20
corporation, or matters leading to the appointment, employment, =
promotion,=20
demotion, discipline, suspension, dismissal or removal of a particular =
person or=20
corporation;
(g) the preparation, grading or=20
administration of examinations; and
(h) the =
proposed=20
acquisition, sale or lease of real property or the proposed acquisition =
of=20
securities, or sale or exchange of securities held by such public body, =
but only=20
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.
Note that item (f) is often referenced =
as=20
=E2=80=9Cpersonnel,=E2=80=9D even though that term does not appear in =
the grounds for holding=20
executive sessions. Only when the discussion focuses on =E2=80=9Ca =
particular person or=20
corporation=E2=80=9D in relation to one or more of the topics listed in =
that provision=20
is an executive session permitted.
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 (=C2=A7106<=
/A>).
=20
Minutes of an open meeting must consist of "a record or summary of all =
motions,=20
proposals, resolutions and any matter formally voted upon and the vote =
thereon."=20
Minutes of 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. The =
law does=20
not require the approval of minutes, but directs that minutes of open =
meetings=20
be prepared and disclosed within two weeks.
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 in=20
private that should have been made in public?
Any =
"aggrieved" person can bring a lawsuit. Since the law says that meetings =
are=20
open to the general public, a person may be aggrieved if improperly =
excluded=20
from a meeting or if an executive session was improperly held.=20
Upon a judicial challenge, a court has the power =
to=20
declare either that the public body violated the Open Meetings Law =
and/or=20
declare the action taken void (=C2=A7107<=
/A>). If=20
the court determines that a public body has violated the law, it has the =
authority to require the members of the public body to receive training =
given by=20
staff of the Committee. A court also has the authority to award =
reasonable=20
attorney fees to the successful party. This means that if you go to =
court and=20
you win, a court may (but need not) reimburse you for your expenditure =
of legal=20
fees. If, on the other hand, the court found that a public body voted in =
private=20
=E2=80=9Cin material violation=E2=80=9D of the law =E2=80=9Cor that =
substantial deliberations occurred=20
in private=E2=80=9D that should have occurred in public, the court would =
be required to=20
award costs and attorney=E2=80=99s fees to the successful party. A =
mandatory award=20
of attorney=E2=80=99s fees would apply only when secrecy is the=20
issue.
It is noted that an unintentional failure =
to fully=20
comply with the notice requirements "shall not alone be grounds for =
invalidating=20
action taken at a meeting of a public body."
The site of meetings
As specified =
earlier, all=20
meetings of a public body are open to the general public. The law =
requires that=20
public bodies make reasonable efforts to ensure that meetings are held =
in=20
facilities that permit "barrier-free physical access" to physically =
handicapped=20
persons, and that meetings are held in rooms that can =
=E2=80=9Cadequately accommodate=E2=80=9D=20
the volume of members of the public who wish to attend (=C2=A7103<=
/A>).
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
(=C2=A7108<=
/A>).=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 identifiable to a particular student would =
constitute=20
a 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.
Public bodies are required to allow =
meetings to be=20
photographed, broadcast, webcast or otherwise recorded as long as the =
equipment=20
used to do so is not disruptive or obtrusive. If the public body =
adopts=20
rules regarding such activities, they must be reasonable and =
conspicuously=20
posted, and provided to those in attendance upon request (=C2=A7103(=
d)).
Revised, September=20 2011