From: dos.sm.Coog.InetCoog
Sent: Tuesday, July 26, 2011 8:51 AM
Subject:    RE: Open Meetings Law

Dear Trustee:

I believe that there is confusion involving the Open Meetings Law and its companion, the Freedom of Information Law.  The two statutes are separate, and the standards regarding disclosure and the ability to withhold information, either via a basis for entry into executive session or assertion of the grounds for denying access to records, differ.  In short, as the grounds for conducting an executive session are compared with the grounds for withholding records under the Freedom of Information Law, they are often inconsistent.  There are instances in which there is no basis for conducting an executive session, but in which there may be a basis for withholding records, and vice versa.

From my perspective, the issue under consideration, the Village of Brockport and the Towns of Sweden and Clarkson forming a fire district, must be discussed in public to comply with the Open Meetings Law.  Unless there is
unusual information that has not been shared, none of the grounds for entry into executive session could properly be asserted to discuss the matter.  On the other hand, there may be elements of the records transmitted between or among the three municipalities that may be withheld under the Freedom of Information Law.  I emphasize "may", for even when the kinds of records in question fall within an exception to rights of access and may be withheld, there is no obligation to withhold them.

The exception in this instance is §87(2)(g) of the Freedom of Information Law concerning "inter-agency or intra-agency materials."  Communications between or among the three municipalities would constitute inter-agency materials, and those portions that consist of advice, opinion, recommendations, questions and the like may be withheld. However, the same provision requires that other portions of those materials that consist of statistical or factual information, that reflect final agency policies or determinations, or which are external audits must be disclosed.

In sum, there would appear to be no basis for conducting an executive session to discuss the formation of a fire district.  That being so, insofar as the content of records have been or should have been discussed and, therefore,
effectively disclosed to the public, I believe that those records or portions of records should be made available to comply with law.  Again, other portions of the records reflective of advice, opinions or recommendations may, but need not be, withheld.

I hope that the foregoing serves to clarify your understanding and that I have been of assistance.

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