September 4, 1997

Ms. Margaret Claiborne
Ithaca Journal
123 W. State Street
Ithaca, NY 14850

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. Claiborne:

As you are aware, I have received your note of July 29 in which you sought opinions concerning the application of the Open Meetings Law, as well as the Freedom of Information Law.

The initial inquiry pertains to the status of "goal-setting meetings" held by school boards. From my perspective, meetings held for that purpose would clearly fall within the coverage of the Open Meetings Law.

In this regard, the Open Meetings Law applies to meetings of public bodies, and §102(1) of the Law defines the term "meeting" to mean "the official convening of a public body for the purpose of conducting public business". Inherent in the definition is the notion of intent. A chance gathering or a social function, for example, would not in my view constitute a meeting, for there would be no intent on the part of those present to conduct public business, collectively, as a body. Similarly, in situations in which members of a public body are part of a large audience and are present as members of the audience, and not to conduct business as a body, I do not believe that the Open Meetings Law would apply, even though a majority of a public body may be present.

Nevertheless, it is emphasized that the definition of "meeting" has been broadly interpreted by the courts. In a landmark decision rendered in 1978, the Court of Appeals, the state's highest court, found that any gathering of a quorum of a public body for the purpose of conducting public business is a "meeting" that must be convened open to the public, whether or not there is an intent to take action and regardless of the manner in which a gathering may be characterized [see Orange County Publications v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)]. I point out that the decision rendered by the Court of Appeals was precipitated by contentions made by public bodies that so-called "work sessions" and similar gatherings held for the purpose of discussion, but without an intent to take action, fell outside the scope of the Open Meetings Law. In discussing the issue, the Appellate Division, whose determination was unanimously affirmed by the Court of Appeals, stated that:

"We believe that the Legislature intended to include more than the mere formal act of voting or the formal execution of an official document. Every step of the decision-making process, including the decision itself, is a necessary preliminary to formal action. Formal acts have always been matters of public record and the public has always been made aware of how its officials have voted on an issue. There would be no need for this law if this was all the Legislature intended. Obviously, every thought, as well as every affirmative act of a public official as it relates to and is within the scope of one's official duties is a matter of public concern. It is the entire decision-making process that the Legislature intended to affect by the enactment of this statute" (60 AD 2d 409, 415).

In short, based upon the direction given by the courts, if a majority of the public body, such as a school board, gathers to conduct the business of the body, in their capacities as board members, any such gathering, in my opinion, would constitute a "meeting" subject to the Open Meetings Law. While a "goal-setting meeting" may be informal, and there may be no votes or action taken at such a gathering, it is clear in my view that the subject matter involves the consideration of public business and the development of public policy. Consequently, again, I believe that the kinds of gatherings to which you referred would constitute "meetings" that fall within the coverage of the Open Meetings Law.

The second issue, as I understand it, is whether an agency must require that a request for records be made in writing. The regulations promulgated by the Committee on Open Government pursuant to the Freedom of Information Law (21 NYCRR Part 1401) indicate that agency may respond to an oral request for records. Specifically, §1401.5(a) provides that: "An agency may require that request be made in writing or may make records available upon oral request."

There are many instances in which agencies dispense with the formality of requiring the preparation of a request in writing. If a person enters a municipal office and asks to see minutes of a meeting, often he or she will simply be directed, orally, to the minute book. Similarly, requests for assessment records, for example, are frequently made prior to the submission of grievances, and many agencies permit the public to review books and records, without the necessity of submitting a written request. In short, agencies may choose to accept oral requests for records and act in an informal manner in their responses to requests for records.

I hope that I have been of assistance. Should any further questions arise, please feel free to contact me. Sincerely,


Robert J. Freeman
Executive Director