May 5, 2000



FROM: Robert J. Freeman, Executive Director

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. Vasile:

I have received your letter of April 3 in which you sought clarification concerning minutes and notes taken during executive sessions.

In your first area of inquiry, you wrote that:

"The Board of Education is required to approve minutes of a regular board meeting. If the Board of Education adjourns into executive session and minutes are taken in executive session, is the Board of Education required to approve the minutes of the executive session, as they are required to approve the minutes of the regular board meeting."

From my perspective, the question is based on the mistaken assumption that minutes of meetings must be approved.

By way of background, first, §106 of the Open Meetings Law pertains to minutes of meetings and states that:

"1. 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.

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."

In view of the foregoing, it is clear in my opinion that minutes of open meetings must be
prepared and made available "within two weeks of the date of such meeting."

There is nothing in the Open Meetings Law or any other statute of which I am aware that requires that minutes be approved. Nevertheless, as a matter of practice or policy, many
public bodies approve minutes of their meetings. In the event that minutes have not been
approved, to comply with the Open Meetings Law, it has consistently been advised that
minutes be prepared and made available within two weeks, and that if the minutes have not
been approved, they may be marked "unapproved", "draft" or "preliminary", for example. By so doing within the requisite time limitations, the public can generally know what transpired at a meeting; concurrently, the public is effectively notified that the minutes are subject to change. If minutes have been prepared within less than two weeks, I believe that those unapproved minutes would be available as soon as they exist, and that they may be marked in the manner described above.

Second, only in rare instances may a board of education take action during an executive session. As a general rule, a public body may take action during a properly convened executive session [see Open Meetings Law, §105(1)]. In the case of most public bodies, 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. Various interpretations of the Education Law, §1708(3), however, indicate that, except in situations in which action during a closed session is permitted or required by statute, a school board
cannot take action during an executive session [see United Teachers of Northport v.
Northport Union Free School District, 50 AD 2d 897 (1975); Kursch et al. v. Board of
Education, Union Free School District #1, Town of North Hempstead, Nassau County, 7 AD 2d 922 (1959); Sanna v. Lindenhurst, 107 Misc. 2d 267, modified 85 AD 2d 157, aff'd 58 NY 2d 626 (1982)]. Stated differently, based upon judicial interpretations of the Education Law, a school board generally cannot vote during an executive session, except in those unusual circumstances in which a statute permits or requires such a vote.

Those circumstances would arise, for example, when a board initiates charges against a tenured person pursuant to §3020-a of the Education Law, which requires that a vote to do
so be taken during an executive session. The other instance would involve a situation in
which action in public could identify a student. When information derived from a record that
is personally identifiable to a student, the federal Family Educational Rights and Privacy Act
(20 USC §1232g) would prohibit disclosure absent consent by a parent of the student. Since §102(2) of the Open Meetings Law states that minutes need not include information that may be withheld under the Freedom of Information Law, and since unproven charges and records identifiable to students may be withheld, minutes containing those kinds of information would not be accessible to the public.

Lastly, if no was taken but the clerk took notes of an executive session, you asked whether the notes should be available "to the Board of Education or newspaper without a FOIL request." In this regard, the Freedom of Information Law pertains to agency records,
and §86(4) of that statute defines the term "record" 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 foregoing, notes taken by the clerk constitute "records" that fall within the
coverage of the Freedom of Information Law.

In brief, that 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. I would conjecture that, due to the nature of the subject matter typically discussed in an executive session, the notes could likely be withheld in great measure, if not in their entirety. If the Board seeks the notes in the performance of its duties, as the governing body, I believe that it would have the authority to obtain them. However, it would be inappropriate in my view to make the notes available to the public or the news media without reviewing them in order to determine the extent, if any, to which they may be withheld.

I hope that I have been of assistance.