March 1, 2017
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, except as otherwise indicated.
We are in receipt of your request for an advisory opinion regarding the manner in which the Otselic Valley Central School Board responded to your Freedom of Information Law (FOIL) request for a copy of the Board’s January 30, 2017 meeting minutes.
As you are aware, the Open Meetings Law includes direction concerning the minimum contents of minutes and the time within which they must be prepared. Specifically, §106 states that:
“1. Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.
2. Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.
3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session.”
Based upon the foregoing, it is clear that minutes must be prepared and made available within two weeks of the date of a meeting. In one of your emails to the school district, you point to an advisory opinion previously rendered by the Committee on Open Government regarding “unapproved minutes” wherein we offer the opinion that meeting minutes must be made available consistent with §106(3) of the Open Meetings Law, regardless of whether or not they have been approved by the Board (See OML AO 2225). We note, too, that there is no requirement that minutes be approved. As you waited until two weeks after the January 30, 2017 meeting to request copies of that meeting’s minutes, it was reasonable of you to expect the school to provide copies of those minutes, in their entirety, without delay.
FOIL provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3)(a) of the Freedom of Information Law states in part that:
“Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied.… If an agency determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part.”
Accordingly, it has long been advised that when an agency is unable to deny or provide access to records within five business days, it must provide a written response indicating either that it will respond within the next twenty business days, or that it is unable to respond until a certain date, providing both the date and the reasons for requiring additional time. From our perspective, every law must be implemented in a manner that gives reasonable effect to its intent, and we point out that in its statement of legislative intent, §84 of FOIL states that "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible." (emphasis added) Therefore, when a request is made for records, such as meeting minutes, that are readily available and clearly public, there should be no reason to delay disclosure beyond the initial five business day period.
You ask “[i]s the record management officer the official in deciding whether to grant or deny access?” The agency’s records access officer is responsible for coordinating the agency’s response to a FOIL request, which includes assuring that agency personnel:
“Upon locating the records, take one of the following actions:
(i) make records promptly available for inspection; or
(ii) deny access to the records in whole or in part and explain in writing the reasons therefor.” (21 NYCRR 1041.2(b)(4)
While it is the responsibility of the records access officer to assure that agency personnel notify you of the agency’s determination, it is not necessarily the responsibility of the records access officer to decide whether to grant or deny access.
Finally, you ask “[i]s there any other course of action I may follow to get the requested records in a timely way?” If you believe that the date provided by the school district by which it plans to respond to your request is unreasonable, you may consider your request to have been constructively denied (see §89(4)(a)). In such a circumstance, the denial may be appealed in accordance with §89(4)(a), which states in relevant part that:
“...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought.”
However, as the school district will have 10 business days from receipt of your appeal to render a response, it is unlikely that an appeal will expedite production of the requested record in any meaningful way.
I hope that I have been of assistance.
cc: Gail Burpee