June 3, 1996



Mr. Michael F. McKeon
Corporation Counsel
City of Auburn
Memorial City Hall
24 South Street
Auburn, NY 13021-3885

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.

Dear Mr. McKeon:

I have received your letter of May 14 in which you requested an advisory opinion concerning the following questions:

"1. With respect to Executive Session minutes, are the handwritten notes releasable under FOIL? 2. Is there any requirement under FOIL that handwritten notes be kept as a record?"

You added that it has been the practice of the secretary to prepare minutes on the basis of her handwritten notes, and to discard the notes after the minutes have been officially printed and filed with the City Clerk.

In this regard, I offer the following comments. First, by way of background, §106 of the Open Meetings Law pertains to minutes, and subdivision (2) of that provision deals with minutes of executive sessions and states that:

"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.

In addition, subdivision (3) of §106 provides that:

"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 on the foregoing, when a public body takes action during an executive session, minutes indicating the nature of the action taken, the date, and the vote of each member must be prepared within one week and made available to the extent required by the Freedom of Information Law. It is noted, however, that if a public body merely discusses an issue or issues during an executive session but takes no action, there is no requirement that minutes of the executive session be prepared.

If minutes or notes are prepared concerning an executive session, even when there is no requirement to do so, any such documents would fall within the coverage of the Freedom of Information Law. It is noted that §86(4) of the statute defines the term "record" broadly to mean:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

Based upon the foregoing, any notes or minutes that are prepared would constitute "records" subject to rights conferred by the Freedom of Information Law.

Again, this is not to suggest that all such records would be available. As a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law. Therefore, the specific contents of the records would determine the extent to which notes might be available or deniable.

Second, while the Freedom of Information Law does not address the issue, §57.25(2) of the Arts and Cultural Affairs Law deals with the retention and disposal of records maintained by local governments. That provision states that:

"No local officer shall destroy, sell or otherwise dispose of any public record without the consent of the commissioner of education. The commissioner of education shall, after consultation with other state agencies and with local government officers, determine the minimum length of time that records need to be retained. Such commissioner is authorized to develop, adopt by regulation, issue and distribute to local governments records retention and disposition schedules establishing mininum legal retention periods. The issuance of such schedules shall constitute formal consent by the commissioner of education to the disposition of records that have been maintained in excess of the retention periods set forth in the schedules. Such schedules shall be reviewed and adopted by formal resolution of the governing body of a local government prior to the disposition of any records. If any law specifically provides a retention and disposition schedule established herein the retention period established by such law shall govern."

I believe that the retention schedule indicates that notes, tape recordings and similar materials used as aids in preparing minutes of meetings must be retained for a minimum of four months following the drafting of minutes. However, to be sure, it is suggested that you confer with the City's records management officer (see Arts and Cultural Affairs Law, §57.19), who should have a copy of the schedule. Alternatively, inquiry could be made to the State Archives and Records Administration, which can be reached at (518)474-6926.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director