August 18, 2016


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 use of “secret ballots” at meetings held by Association or Free Library Boards of Trustees. 

As you are aware, “Association” or “Free” libraries, notwithstanding their corporate or non-governmental status, are required to comply with the Open Meetings Law (OML) pursuant to §260-a of the Education Law, which states in relevant part that meetings “of a board of trustees of a public library system, public library or free association library….shall be open to the general public” and that “Such meetings shall be held in conformity with and in pursuance of  article seven of the public officers law,” which is the OML.  However, such not-for-profit library entities are not subject to the Freedom of Information Law (FOIL).

In Perez v. City University of New York, 5 NY3d 522, 530 (2005), the Court of Appeals addressed the use of “secret ballots” by an entity subject to both the OML and FOIL.  The Court held:

“The Open Meetings Law does not speak to balloting or voting procedures, requiring only that “[m]inutes 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” ( see Public Officers Law § 106 [1]). A final determination may easily be recorded in the meeting's minutes without an accounting of each participant's ballot. Though we construe the provisions of the Open Meetings Law liberally, we will not add a requirement to the text of the statute.”

The Court went on to address the FOIL requirement for a written record of how each member voted:

“Under the Freedom of Information Law, however, a public agency must maintain “a record of the final vote of each member in every agency proceeding in which the member votes” (Public Officers Law § 87 [3] [a]). This requirement differs from the summary of a final vote mandated by the Open Meetings Law. The requisite record of the final vote of each member would be impossible were the final vote of each member anonymous or secret. Consequently, under the Freedom of Information Law, voting by the College Senate and the Executive Committee may not be conducted by secret ballot.”

In summary, the Court determined that the prohibition against “secret ballots” derives, not from the OML, but from FOIL.  According to judicial precedent, it appears that a public body that is subject to the OML, but not FOIL, such as an Association Library would not be prohibited from voting via secret ballot. 

In our opinion, however, we believe the use of a secret ballot is inconsistent with the legislative intent of the OML:

“It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.”  (OML §100)

The use of a secret ballot is an obstacle to the public’s ability to “listen to the…decisions that go into the making of public policy.”  In our opinion, the goals of open government are better met by the use of open voting. 

I hope that I have been of assistance. 


Kristin O’Neill
Assistant Director