October 14, 1993
Mr. Jeffrey McCheskey
Jamestown Housing Authority
City of Jamestown
Hotel Jamestown Bldg.
Jamestown, NY 14701
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
Dear Mr. McCheskey:
As you are aware, I have received your letter of August 31. Please accept my apologies for the delay in response.
On behalf of the Jamestown Housing Authority and its Chairman, you raised a series of questions concerning the Open Meetings Law, particularly as that statute pertains to executive sessions.
First, you asked whether the "mover", the person who introduces a motion to enter into an executive session, is "obligated to inform the public as to whether or not formal action will result from an impending Executive Session" (emphasis yours).
From my perspective, since executive sessions are held to discuss, to deliberate, and perhaps to debate the positive and negative aspects of certain issues, it cannot necessarily be known at the time that a motion is made to conduct an executive session that "formal action will result." Nothing in the Open Meetings Law deals directly with the question, and in my view, the Law imposes no obligation in advance of an executive session to specify whether action will or will not be taken during the executive session.
Second, you questioned whether the recording secretary is "obligated...to take minutes of an executive session even if no formal action has been taken by the Board", and whether, if minutes are prepared, they must be made available in "any or all cases" (emphasis yours) to the public.
In this regard, §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.
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 records are available or deniable. For instance, while minutes indicating that the Board decided to fill a vacant position by hiring a particular individual would clearly be public, insofar as minutes identify applicants for dwellings or tenants in public housing, I believe that they must be withheld (see Public Housing Law, §159).
Lastly, you asked whether there may be "'rules of thumb' that apply in all instances involving both the entrance into and the exit from an Executive Session" (emphasis yours). Here I point out that the Open Meetings Law requires that a procedure be accomplished, during an open meeting, before a public body may enter into an executive session. Specifically, §105(1) states in relevant part that:
"Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only, provided, however, that no action by form vote shall be taken to appropriate public moneys..."
The ensuing provisions of §105(1) specify and limit the subjects that may appropriately be considered during an executive session. There is nothing in the Open Meetings Law pertaining specifically to "the exit" from an executive session. It is suggested that when discussion of the subject or subjects identified the motion to enter into executive session has ended, the Board should return to the open portion of the meeting to continue carrying out its business.
I hope that I have been of some assistance.
Robert J. Freeman