February 26, 1999

Ms. Joan Eustace-Reeverts
387 McKinley Avenue
Williamsville, NY 14221

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 Ms. Eustace-Reeverts:

I have received your letter of February 16 in which you raised a series of questions concerning the disclosure of information by Erie Community College.

The initial area of inquiry involves your efforts in obtaining notes of interviews pertaining to you. In this regard, in view of the delays that you have encountered, I point out that the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3) of the Freedom of Information
Law states in part that:

"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available
to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date when such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, or if an agency delays responding for an unreasonable time after it acknowledges that a request has been received, a request may, in my opinion, be considered to have been constructively denied. In such a circumstance, I believe that the denial may be appealed in accordance with §89(4)(a) of the Freedom of Information Law. That provision states in relevant part that:

"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the
receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."

In addition, it has been held that when an appeal is made but a determination is not rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of Information Law, the appellant has exhausted his or her administrative
remedies and may initiate a challenge to a constructive denial of access under Article 78 of
the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].

As a general matter, the Freedom of Information 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.

Relevant with respect to access to the notes is §87 (2)(g), which states that an agency may withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

In short, insofar as the notes consist of factual information, I believe that they must be disclosed; insofar as they include the interviewer's opinions or recommendations, I believe
they may be withheld.

A second area of inquiry pertains to the contents of minutes of meetings of the Executive Committee of the Board of Trustees. In this regard, §106(1) of the Open Meetings Law provides direction concerning the contents of minutes of open meetings and states that:

"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."

In a decision that may be pertinent to the matter, Mitzner v. Goshen Central School District Board of Education [Supreme Court, Orange County, April 15, 1993], the case involved a series of complaints that were reviewed by the School Board president, and the minutes of the Board meeting merely stated that "the Board hereby ratifies the action of the President in signing and issuing eight Determinations in regard to complaints received from Mr. Bernard Mitzner." The court held that "these bare-bones resolutions do not qualify as a record or summary of the final determination as required" by §106 of the Open Meetings
Law. As such, the court found that the failure to indicate the nature of the determination of
the complaints was inadequate. In the context of your inquiry, I believe that, in order to
comply with the Open Meetings Law and to be consistent with the thrust of the holding in
Mitzner, minutes must indicate in some manner the precise nature of the Board's action.

With respect to minutes of executive sessions, the remainder of §106 of the Open
Meetings Law provides that:

"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."

I point out that, as a general rule, a public body may take action during a properly convened executive session [see Open Meetings Law, §105(1)]. If action is taken during an executive session, minutes reflective of the action, the date and the vote must be recorded in minutes pursuant to §106(2) of the Law. If no action is taken, there is no requirement that minutes of the executive session be prepared.

It is noted that minutes of executive sessions need not include information that may be withheld under the Freedom of Information Law. From my perspective, even when a
public body makes a final determination during an executive session, that determination will,
in most instances, be public. For example, although a discussion to hire or fire a particular
employee could clearly be discussed during an executive session [see Open Meetings Law,
§105(1)(f), a determination to hire or fire that person would be recorded in minutes and
would be available to the public under the Freedom of Information Law. On other hand, if
a public body votes to initiate a disciplinary proceeding against a public employee, minutes
reflective of its action would not have include reference to or identify the person, for the
Freedom of Information Law authorizes an agency to withhold records to the extent that
disclosure would result in an unwarranted personal privacy [see Freedom of Information Law, §87(2)(b)].

With regard to information detailing how each member voted, I direct your attention to the Freedom of Information Law. Section 87(3)(a) provides that:

"Each agency shall maintain:

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

Based upon the foregoing, when a final vote is taken by an "agency", which is defined to
include a state or municipal board [see §86(3)], a record must be prepared that indicates the manner in which each member who voted cast his or her vote. Ordinarily, records of votes will appear in minutes.

In terms of the rationale of §87(3)(a), it appears that the State Legislature in precluding secret ballot voting sought to ensure that the public has the right to know how its representatives may have voted individually with respect to particular issues. Although the
Open Meetings Law does not refer specifically to the manner in which votes are taken or
recorded, I believe that the thrust of §87(3)(a) of the Freedom of Information Law is consistent with the Legislative Declaration that appears at the beginning of the Open Meetings Law and states that:

"it is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants."

Moreover, in an Appellate Division decision that was affirmed by the Court of Appeals, it was found that "The use of a secret ballot for voting purposes was improper." In so holding, the Court stated that: "When action is taken by formal vote at open or executive sessions, the Freedom of Information Law and the Open Meetings Law both require open voting and a record of the manner in which each member voted [Public Officers Law §87[3][a]; §106[1], [2]" Smithson v. Ilion Housing Authority, 130 AD 2d 965, 967 (1987); aff'd 72 NY 2d 1034 (1988)].

Lastly, you expressed an understanding that:

"if an employee is going to be discussed in ‘executive session' that the employee must be given 48 hours advance notice, and the employee has the right to move it to an ‘open session' and that the decision is strictly up to the employee not the employer, and the employee has a right to counsel."

I believe that your understanding is inaccurate. There is nothing in the open Meetings
Law that requires that an employee be given notice that he or she will be discussed during an executive session. Further, the subject of the discussion has no control over whether the
discussion is held in public or in private based on the provision of the Open Meetings Law.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Board of Trustees
Darley Willis