September 15, 1995



Mr. Paul Fiondella
25 Maple Lane
East Hampton, NY 11937

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. Fiondella:

As you are aware, I have received your letter of August 29. Please accept my apologies for the delay in response.

According to your letter, on August 24, you requested minutes of meetings of the East Hampton Town Planning Board "for the purpose of examining the attendance and voting records of two of [your] opponents for political office, both of whom are Planning Board members." You encountered a series of delays and contend that, "being a candidate for political office, [you were] subjected to a different procedure" than that generally followed. You indicated that "[i]n the past people wishing to examine Planning Board records have always been able to do so simply by calling the Planning Board and checking that the records could be located in time to be examined by them." It is your view that you have been constructively denied access and you suggested that the matter be "investigated" by this office.

In this regard, the Committee on Open Government has neither the authority nor the resources to conduct what might be characterized as an investigation. As indicated above, however, this office is authorized to provide advisory opinions concerning the Freedom of Information and Open Meetings Laws. While such opinions are not binding, it is my hope that they are educational and persuasive, and that they serve to enhance compliance with the statutes within the Committee's advisory jurisdiction. With those goals, I offer the following comments, and copies will be sent to Town officials.

First, as a general matter, the reasons for which a request is made and an applicant's potential use of records are irrelevant. It has been held that if records are accessible under the Freedom of Information Law, they should be made equally available to any person, without regard to status or interest [see M.Farbman & Sons v. New York City, 62 NY 2d 75 (1984); also Burke v. Yudelson, 51 AD 2d 673 (1976)]. Therefore, if indeed your request has been accorded treatment different from established procedure or practice or different from the manner in which other members of the public are treated when seeking the same records, I believe that the Town would have acted in a manner inconsistent with the Freedom of Information Law and its judicial interpretation.

Second, §106 of the Open Meetings Law pertains to minutes of meetings and 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."

In view of the foregoing, it is clear in my opinion that minutes of open meetings must be prepared and made available "within two weeks of the date of such meeting."

Third, 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.

In general, minutes consist of a factual rendition of what transpired at an open meeting. On that basis, I believe that they are accessible [see Freedom of Information Law, section 87(2)(g)(i)]. Further, minutes often reflect final agency determinations, which are available under §87(2)(g)(iii). Additionally, in the case of an open meeting during which the public may be present and, in fact, may tape record the meeting [see Mitchell v. Board of Education of the Garden City Union Free School District, 113 AD 2d 924 (1985)], there would appear to be no valid basis for withholding minutes, whether or not they have been approved.

Lastly, since the Freedom of Information Law was enacted in 1974, it has imposed what some have characterized as an "open vote" requirement. Although that statutue generally pertains to existing records and ordinarily does not require that a record be created or prepared [see Freedom of Information Law, §89(3)], an exception to that rule involves voting by agency members. Specifically, §87(3) of the Freedom of Information Law has long required that:

"Each agency shall maintain:

(a) a record of the final vote of each member in every agency proceeding in which the member votes..."

Stated differently, when a final vote is taken by members of an agency, a record must be prepared that indicates the manner in which each member who voted cast his or her vote. Further, in an Appellate Division decision that was affirmed by the Court of Appeals, it was found that "[t]he use of a secret ballot for voting purposes was improper", and that the Freedom of Information Law requires "open voting and a record of the manner in which each member voted" [Smithson v. Ilion Housing Authority, 130 AD 2d 965, 967 (1987), aff'd 72 NY 2d 1034 (1988)].

To comply with the Freedom of Information Law, I believe that a record must be prepared and maintained indicating how each member cast his or her vote. From my perspective, disclosure of the record of votes of members of public bodies, such as the Planning Board in this instance, represents a means by which the public can know how their representatives asserted their authority. Ordinarily, a record of votes of the members appear in minutes required to be prepared pursuant to §106 of the Open Meetings Law. I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Planning Board
Mr. Jilnicki, Deputy Town Attorney
Frederick W. Yardley, Town Clerk