February 13, 2015
FROM: Camille Jobin-Davis, Assistant Director
The staff of the Committee on Open Government is authorized to issued advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
This is in response to yours of October 22, 2014, in which you request information and advice regarding enforcement of various provisions of the Town Law and the Open Meetings Law with respect to website postings for the Roosevelt Fire District.
This will confirm that various provisions of Town Law require the District to post certain notices and records online in a timely fashion. Enforcement of Town Law requirements, as far as I am able to determine, would involve the initiation of a proceeding under Article 78 of the Civil Practice Law and Rules, which sets forth the procedures for challenging a determination of a public body or officer. For example, should a District fail to post required notices for an election or a budget hearing, it is possible that the validity of the election or the budget could be challenged if a proceeding were brought against the District in a timely fashion (within four months), pursuant to Article 78.
As you have noted, for two years §103(e) of the Open Meetings Law has required that various records scheduled for discussion during the course of a public meeting also be posted online. The goal of this section is direct: those interested in the work of public bodies should have the ability, within reasonable limitations, to see the records scheduled to be discussed during open meetings prior to the meetings. The entire text of the amendment is as follows:
“(e) Agency records available to the public pursuant to [FOIL], as well as any proposed resolution, law, rule, regulation, policy or any amendment thereto, that is scheduled to be the subject of discussion by a public body during an open meeting shall be made available, upon request therefor, to the extent practicable as determined by the agency or the department, prior to or at the meeting during which the records will be discussed. Copies of such records may be made available for a reasonable fee, determined in the same manner as provided therefore in [FOIL]. If the agency in which a public body functions maintains a regularly and routinely updated website and utilizes a high speed internet connection, such records shall be posted on the website to the extent practicable as determined by the agency or the department, prior to the meeting. An agency may, but shall not be required to, expend additional moneys to implement the provisions of this subdivision.”
In short, when a public body schedules a document for discussion during an open meeting that is required to be made public pursuant to the Freedom of Information Law, it is required to make the record available to the public, to the extent practicable, online and prior to or at the meeting during which the record is discussed. As counsel to the District has accurately noted, the District is not required to expend additional moneys to implement these provisions; however, it is required to, upon request, post such records online to the extent practicable, prior to the meeting and/or provide paper copies.
Enforcement of the Open Meetings Law is through the same Article 78 proceeding as mentioned above, and Open Meetings Law §107, which provides for various discretionary awards that a court could make upon good cause shown, including awarding attorney’s fees, invalidating action taken, and requiring the members of a public body to attend training at our office. Please note that there is a four month statute of limitations within which an Article 78 proceeding must be brought, I strongly recommend reliance on the advice and counsel of an attorney to effectuate such a proceeding.
I hope this is helpful.