February 9, 2000
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, unless otherwise indicated.
As you are aware, I have received your letter of December 29. In your capacity as a
director of the Great Swamp Conservancy, Inc., you indicated that you have encountered
difficulty since 1997 in obtaining information relating to the Cowaselon Creek Watershed
District (CCWD) Board. Your initial request directed to the Board appears to have been
ignored, and you wrote that the Madison County Treasurer responded to your request for bills associated with the District by stating that: "We will supply them to you when we can." You added that the CCWD Board "does not advertise its meetings nor do they hold them in a public place."
In this regard, I offer the following comments.
First, when I raised questions concerning the means by which the Board was created,
you referred to Article 5-D of the County Law. Within Article 5-D are §§299-o and 299-p. The former pertains to the establishment of a county watershed protection district and states in part that:
"After a watershed district has been created and a project has been approved for construction it shall be the responsibility of the county to require the watershed district to construct, operate, repair and maintain the project works and facilities in accordance with the plans and specifications and to accomplish and maintain the project and purpose for which the watershed district was created."
The latter states that the County Board of Supervisors is required to appoint or designate an
administrative head or body to enable the district to carry out its powers and duties, which are
equivalent to those of other districts created by a county in accordance with §§261 to 264 of
the County Law.
In this instance, a board was established, and assuming that the CCWD Board consists of two or more members, I believe that it would be subject to the requirements of the Open Meetings Law. That statute pertains to meetings of public bodies, and §102(2) defines the phrase "public body" to include:
"...any entity for which a quorum is required in order to
conduct public business and which consists of two or more
members, performing a governmental function for the state or
for an agency or department thereof, or for a public corporation
as defined in section sixty-six of the general construction law,
or committee or subcommittee or other similar body of such
Because the CCWD Board was created by the County and, pursuant to Article 5-d, carries out certain powers and duties, I believe that it conducts public business and performs a governmental function for a public corporation, in this instance, Madison County. If that is so, the Board constitutes a "public body" required to comply with the Open Meetings Law.
Rights of access to meetings conferred by that statute have been construed expansively, and 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).
The court also dealt with the characterization of meetings as "informal," stating that:
"The word 'formal' is defined merely as 'following or according with established form, custom, or rule' (Webster's Third New Int. Dictionary). We believe that it was inserted to safeguard the rights of members of a public body to engage in ordinary social transactions, but not to permit the use of this safeguard as a vehicle by which it precludes the application of the law to gatherings which have as their true purpose the discussion of the business of a public body" (id.).
Further, the Open Meetings Law requires that notice be posted and given to the news
media prior to every meeting of a public body, such as a board of education. Specifically,
§104 of that statute provides that:
"1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before each meeting.
2. Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.
3. The public notice provided for by this section shall not be construed to require publication as a legal notice."
Stated differently, if a meeting is scheduled at least a week in advance, notice of the time and
place must be given to the news media and to the public by means of posting in one or more
designated public locations, not less than seventy-two hours prior to the meeting. If a
meeting is scheduled less than a week an advance, again, notice of the time and place must be given to the news media and posted in the same manner as described above, "to the extent practicable", at a reasonable time prior to the meeting.
There is nothing in the Open Meetings Law that specifies where meetings may be held. The only provision that deals somewhat directly with the issue is §103(b), which states that public bodies must make or cause to made reasonable efforts to hold meetings in locations that offer barrier-free access to physically handicapped persons. Perhaps equally pertinent is §100 of the Open Meetings Law, the Legislative Declaration, which 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 an 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. It is the only climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created it."
As such, the Open Meetings Law confers a right upon the public to attend and listen to the
deliberations of public bodies and to observe the performance of public officials who serve
on such bodies.
From my perspective, every provision of law, including the Open Meetings Law, should be implemented in a manner that gives reasonable effect to its intent. Whether a meeting is held on public or private property, to give reasonable effect to the law, I believe that meetings should be held in locations in which those likely interested in attending have a reasonable opportunity to do so.
Second, with respect to access to records, the Freedom of Information Law is applicable to agency records, and §86(3) defines the term "agency" to mean:
"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."
Based on the language quoted above, the County, as well as any municipal board, would
constitute an agency falling within the coverage of the Freedom of Information Law.
As a general matter, that statute 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 my view, bills and similar records involving the receipt or expenditure of public monies would be available, for none of the grounds for denial would apply.
Lastly, 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)].
Although an agency must grant access to records, deny access or acknowledge the receipt of a request within five business days, when such acknowledgement is given, there is no precise time period within which an agency must grant or deny access to records. The time needed to do so may be dependent upon the volume of a request, the possibility that other requests have been made, the necessity to conduct legal research, the search and retrieval techniques used to locate the records and the like. In short, when an agency acknowledges the receipt of a request because more than five business days may be needed to grant or deny a request, so long as it provides an approximate date indicating when the request will be granted or denied, and that date is reasonable in view of the attendant circumstances, I believe that the agency would be acting in compliance with law.
Notwithstanding the foregoing, a suggested earlier, every law must be implemented in
a manner that gives reasonable effect to its intent, and I point out that in its statement of
legislative intent, §84 of the Freedom of Information Law states that "it is incumbent upon
the state and its localities to extend public accountability wherever and whenever feasible."
Therefore, if records are clearly available to the public under the Freedom of Information Law, and if they are readily retrievable, there may be no basis for a lengthy delay in disclosure. As the Court of Appeals has asserted:
"...the successful implementation of the policies motivating the
enactment of the Freedom of Information Law centers on goals
as broad as the achievement of a more informed electorate and
a more responsible and responsive officialdom. By their very
nature such objectives cannot hope to be attained unless the
measures taken to bring them about permeate the body politic
to a point where they become the rule rather than the exception.
The phrase 'public accountability wherever and whenever feasible' therefore merely punctuates with explicitness what in any event is implicit" [Westchester News v. Kimball, 50 NY 2d 575, 579 (1980)].
As you requested, copies of this opinion will be forwarded to the officials that you
I hope that I have been of assistance.
Robert J. Freeman
cc: Rocco DiVeronica
Chairman, Madison County Board of Supervisors