December 23, 1996


Mrs. W.R. Powell
57 Eddy Road
Roosevelt, NY 11575-1825

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 Ms. Powell:

I have received your letter of November 13, which reached this office on November 13. Please accept my apologies for the delay in response.

You raised a series of issues concerning the State Review Panel created by Chapter 145 of the Laws of 1995 and asked whether it is required to comply with the Freedom of Information and Open Meetings Laws.

In this regard, for reasons discussed in an advisory opinion addressed to you on May 14, I believe that the Review Panel is a "public body" subject to the Open Meetings Law. Since you referred to attendance at its executive sessions, I note that §102(3) of the Open Meetings Law defines the phrase "executive session" to mean a portion of an open meeting during which the public may be excluded. While the public has no general right to attend an executive session, §105(2) of that statute provides that: "Attendance at an executive session shall be permitted to any member of the public body and any other persons authorized by the public body." Therefore, the only people who have the right to attend an executive session are the members of the public body, i.e., the Review Panel. However, a public body, such as the Review Panel, may authorize others to attend. Often the attendance of certain others is routine and occurs informally. For example, while a superintendent is not a member of a board of education, that person may attend executive sessions as a matter of course. In other cases, a public body may authorize the attendance of non-members by means of a motion and vote to permit a particular person or persons to attend.

I believe that the records of the Review Panel are clearly subject to the Freedom of Information Law as well. That statute pertains to agency records, and §86(3) defines the term "agency" to include:

"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

From my perspective, a statutorily created entity such as the Review Panel clearly performs a governmental function for the state and/or a public corporation, the Roosevelt School District.

Viewing the matter from a somewhat different perspective, §86(4) 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 on the language quoted above, any documentation maintained by the review panel would have been acquired or produced by or for an agency, i.e., either the State Education Department or the Roosevelt School District and therefore would constitute a "record" that falls within the coverage of the Freedom of Information Law.

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. Since you referred to "abuses" relating to money, I note that records involving the expenditure of public monies are typically accessible, for none of the grounds for denial of access would be applicable.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: State Review Panel