August 27, 1998



Mr. James P. Lamb
BBI Consulting Services
405 Imperial Way
Bayport, NY 11705

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

Dear Mr. Lamb:

I have received your letter of August 18 in which you requested an advisory opinion
relating to both the Freedom of Information and Open Meetings Laws.

You referred to the regulation of the motor carrier industry in New York by the State
Department of Transportation and particularly its Intermodal Operations Bureau. The
Bureau's Carrier Assistance Section, according to your letter, conducts audits of motor
carriers to ensure compliance with law. You indicated that in some instances, the
Department's inquiries lead to the issuance of notices of violations, which are adjudicated
before an administrative law judge at a hearing. In relation to the foregoing, you raised the
following questions:

"(1). Is the Department's monthly hearing schedule, which: (1) identifies the respondents scheduled to appear, the violation numbers and the Department's issuing agents; and
(2) advises the date, time and location of the Department's monthly hearings, accessible to me under the state Freedom of Information Law.

(2). Are the individual Notices to Appear sent to carriers advising them of the date, time and location of their hearing accessible to me under the state Freedom of Information
(3). I would like to know if the administrative hearings referred to above are required to be open to the public under the Open Meetings Law."

In this regard, I offer the following comments.

First, the Freedom of Information Law pertains to existing records, and §89(3) of that
statute provides in part that an agency is not required to create a record in response to a
request. If the Department does not prepare a monthly hearing schedule that contains the
items that you described, for example, it would not be required to prepare such a record on
your behalf.

Second, insofar as agency records exist, 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.

From my perspective, a monthly hearing schedule and notices to appear would be accessible. In short, none of the grounds for denial in my opinion would be pertinent.
Although an agency has the ability to withhold records when disclosure would constitute an
unwarranted invasion of personal privacy [see Freedom of Information Law, §87(2)(b)], the records in question as I understand them relate to business entities or persons acting in a
business capacity. If that is so, the exception regarding the protection of privacy, which pertains only to natural persons, would be inapplicable.

Lastly, the Open Meetings Law in my view would be inapplicable. That statute pertains to meetings of public bodies, and §102(2) of the Law defines the phrase "public body" to mean an entity consisting of two or more members that performs a governmental function collectively as a body. A hearing before a single administrative law judge would not involve the presence of a public body. Moreover, §108(1) exempts from the coverage of the Open Meetings Law judicial and quasi-judicial proceedings. As I understand the matter, a hearing before an administrative law judge would be a quasi-judicial proceeding.

Notwithstanding the foregoing, I believe that the hearings in question must generally be open to the public. In a decision rendered by the Court of Appeals, the state's highest court, it was held that administrative proceedings are "presumed to be open, and may not be closed to the public unless there is demonstrated a compelling reason for closure..." [Herald Company, Inc. v. Weisenberg, 59 NY2d 378, 380 (1983)]. Based upon the holding of the
Court of Appeals, I believe that the hearings at issue would be presumptively open to the

I hope that I have been of assistance.



Robert J. Freeman
Executive Director
cc: Charles Bauer
John Dearstyne