May 31, 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
I have received your letter of April 27, as well as the materials attached to it. You
have raised issues relating to both the Open Meetings and Freedom of Information Laws.
You referred to a meeting characterized as an "emergency meeting" by the Village of
Bergen Administrator and indicated that she (the Village Administrator) stated that the
Village was not obligated by law to provide notice of the meeting to the official newspaper.
She added that she did provide notice to the official newspaper, but that the newspaper did
not print "any public notification of this meeting."
In this regard, 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 village board of trustees.
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
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. Although the Open Meetings Law
does not make reference to "special" or "emergency" meetings, if, for example, there is a
need to convene quickly, the notice requirements can generally be met by telephoning or
faxing notice of the time and place of a meeting to the local news media and by posting
notice in one or more designated locations.
The Open Meetings Law does not specify that notice of a meeting must be given to
the official newspaper. In some instances, the official newspaper may be a weekly
publication, and notice in some circumstances might be more appropriately given to a daily
newspaper or radio station, for example. Further, to comply with the Open Meetings Law, a
public body is not required to pay to place a legal notice in a newspaper or to "advertise" that
a meeting will be held at a certain time and place; a public body must merely "give" notice to
the news media and post the notice. In some circumstances, public bodies have given notice
to the news media, and the newspapers or radio stations in receipt of the notices have chosen
not to print or publicize the meetings to which the notices relate. In those cases, despite the
failure of a notice to be publicized, a public body would have complied with law.
I note that the judicial interpretation of the Open Meetings Law suggests that the
propriety of scheduling a meeting less than a week in advance is dependent upon the actual
need to do so. As stated in Previdi v. Hirsch:
"Whether abbreviated notice is 'practicable' or 'reasonable' in a
given case depends on the necessity for same. Here,
respondents virtually concede a lack of urgency: They deny
petitioner's characterization of the session as an 'emergency'
and maintain nothing of substance was transacted at the
meeting except to discuss the status of litigation and to
authorize, pro forma, their insurance carrier's involvement in
negotiations. It is manifest then that the executive session
could easily have been scheduled for another date with only
minimum delay. In that event respondents could even have
provided the more extensive notice required by POL §104(1).
Only respondent's choice in scheduling prevented this result.
"Moreover, given the short notice provided by respondents, it
should have been apparent that the posting of a single notice in
the School District offices would hardly serve to apprise the
public that an executive session was being called...
"In White v. Battaglia, 79 A.D. 2d 880, 881, 434 N.Y.S.ed 637,
lv. to app. den. 53 N.Y.2d 603, 439 N.Y.S.2d 1027, 421 N.E.2d
854, the Court condemned an almost identical method of notice
as one at bar:
"Fay Powell, then president of the board, began contacting
board members at 4:00 p.m. on June 27 to ask them to attend a
meeting at 7:30 that evening at the central office, which was
not the usual meeting date or place. The only notice given to
the public was one typewritten announcement posted on the
central office bulletin board...Special Term could find on this
record that appellants violated the...Public Officers Law...in
that notice was not given 'to the extent practicable, to the news
media' nor was it 'conspicuously posted in one or more
designated public locations' at a reasonable time 'prior thereto'
(emphasis added)" [524 NYS 2d 643, 645 (1988)].
Based upon the foregoing, absent an emergency or urgency, the Court in Previdi suggested
that it would be unreasonable to conduct meetings on short notice, unless there is some
necessity to do so.
The second issue involves a resolution approved "to allow the Village attorneys to
rehire [an] environmental consulting firm." Nevertheless, you wrote that the minutes of the
meeting indicate that the matter was discussed during an executive session held "to discuss
potential litigation." You asked whether "the attorneys hiring the consulting firm [will]
restrict using FOIL to gain access to information about this public project."
With respect to the propriety of the executive session, the provision in the Open
Meetings Law that deals with litigation is §105(1)(d), which permits a public body to enter
into an executive session to discuss "proposed, pending or current litigation". In construing
the language quoted above, it has been held that:
"The purpose of paragraph d is "to enable is to enable a public
body to discuss pending litigation privately, without baring its
strategy to its adversary through mandatory public meetings'
(Matter of Concerned Citizens to Review Jefferson Val. Mall
v. Town Bd. Of Town of Yorktown, 83 AD 2d 612, 613, 441
NYS 2d 292). The belief of the town's attorney that a decision
adverse to petitioner 'would almost certainly lead to litigation'
does not justify the conducting of this public business in an
executive session. To accept this argument would be to accept
the view that any public body could bar the public from its
meetings simply be expressing the fear that litigation may
result from actions taken therein. Such a view would be
contrary to both the letter and the spirit of the exception"
[Weatherwax v. Town of Stony Point, 97 AD 2d 840, 841
Based upon the foregoing, I believe that the exception is intended to permit a public body to
discuss its litigation strategy behind closed doors, rather than issues that might eventually
result in litigation. Since potential litigation could be the subject or result of nearly any topic
discussed by a public body, an executive session could not in my view be held to discuss an
issue merely because there is a possibility of litigation; in my opinion, only to the extent that
public body discusses its litigation strategy could an executive session be properly held under
With regard to access to records, as a general matter, 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. It is emphasized that the
introductory language of §87(2) refers to the authority to withhold "records or portions
thereof" that fall within the scope of the exceptions that follow. In my view, the phrase
quoted in the preceding sentence evidences a recognition on the part of the Legislature that a
single record or report, for example, might include portions that are available under the
statute, as well as portions that might justifiably be withheld. That being so, I believe that it
also imposes an obligation on an agency to review records sought, in their entirety, to
determine which portions, if any, might properly be withheld or deleted prior to disclosing
The Court of Appeals expressed its general view of the intent of the Freedom of
Information Law most recently in Gould v. New York City Police Department [87 NY 2d
267 (1996)], stating that:
"To ensure maximum access to government records, the
'exemptions are to be narrowly construed, with the burden
resting on the agency to demonstrate that the requested material
indeed qualifies for exemption' (Matter of Hanig v. State of
New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580
N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law §
89[b]). As this Court has stated, '[o]nly where the material
requested falls squarely within the ambit of one of these
statutory exemptions may disclosure be withheld' (Matter of
Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393
N.E.2d 463)" (id., 275).
Just as significant, the Court in Gould repeatedly specified that a categorical denial of
access to records is inconsistent with the requirements of the Freedom of Information Law.
In that case, the agency contended that complaint follow up reports, also known as "DD5's",
could be withheld in their entirety on the ground that they fall within the exception regarding
intra-agency materials, §87(2)(g). The Court, however, wrote that: "Petitioners contend that
because the complaint follow-up reports contain factual data, the exemption does not justify
complete nondisclosure of the reports. We agree" (id., 276). The Court then stated as a
general principle that "blanket exemptions for particular types of documents are inimical to
FOIL's policy of open government" (id., 275). The Court also offered guidance to agencies
and lower courts in determining rights of access and referred to several decisions it had
previously rendered, directing that:
"...to invoke one of the exemptions of section 87(2), the agency
must articulate particularized and specific justification' for not
disclosing requested documents (Matter of Fink v. Lefkowitz,
supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463).
If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative
documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).
As I understand the matter, that the attorneys for the Village were given the authority
to hire a consulting firm would not remove the records prepared by the firm for the Village
from the Freedom of Information Law. That statute pertains to agency records, and §86(4)
defines the term "record" expansively to include:
"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 records prepared by a consulting firm for the Village would constitute Village records that fall within the coverage of the Freedom of Information Law.
I note that under §3101(d) of the Civil Practice Law and Rules, material prepared for
litigation is shielded from disclosure. However, it has been determined judicially that if
records are prepared for multiple purposes, one of which includes eventual use in litigation,
§3101(d) does not serve as a basis for withholding records; only when records are prepared solely for litigation can §3101(d) be properly asserted to deny access to records [see e.g., Westchester-Rockland Newspapers v. Mosczydlowski, 58 AD 2d 234 (1977)]. It is my understanding that the records prepared by the consulting firm would not be prepared solely for litigation.
It appears that the only pertinent ground for denial would be §87(2)(g), which permits
an agency to 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 a discussion of the issue of records prepared by consultants for agencies, the Court
of Appeals stated that:
"Opinions and recommendations prepared by agency personnel may be exempt from disclosure under FOIL as 'predecisional materials, prepared to assist an agency decision maker***in arriving at his decision' (McAulay v. Board of Educ., 61 AD 2d 1048, aff'd 48 NY 2d 659). Such material is exempt 'to protect the deliberative process of government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers (Matter of Sea Crest Const. Corp. v. Stubing, 82 AD 2d 546, 549).
"In connection with their deliberative process, agencies may at
times require opinions and recommendations from outside
consultants. It would make little sense to protect the
deliberative process when such reports are prepared by agency employees yet deny this protection when reports are prepared for the same purpose by outside consultants retained by agencies. Accordingly, we hold that records may be considered 'intra-agency material' even though prepared by an outside consultant at the behest of an agency as part of the
agency's deliberative process (see, Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD 2d 546, 549, supra; Matter of 124 Ferry St. Realty Corp. v. Hennessy, 82 AD 2d 981, 983)" [Xerox Corporation v. Town of Webster, 65 NY 2d 131, 132-133 (1985)].
Based upon the foregoing, records prepared by a consultant for an agency may be withheld or must be disclosed based upon the same standards as in cases in which records are prepared by the staff of an agency. It is emphasized that the Court in Xerox specified that the contents of intra-agency materials determine the extent to which they may be available or withheld, for it was held that:
"While the reports in principle may be exempt from disclosure, on this record - which contains only the barest description of them - we cannot determine whether the documents in fact fall wholly within the scope of FOIL's exemption for 'intra-agency materials,' as claimed by respondents. To the extent the reports contain 'statistical or factual tabulations or data' (Public Officers Law section 87[g][i], or other material subject to production, they should be redacted and made available to the appellant" (id. at 133).
Therefore, a record prepared by a consultant for an agency would be accessible or deniable, in whole or in part, depending on its contents.
The Court in the Gould decision cited earlier dealt with the issue of what constitutes
"factual data" that must be disclosed under §87(2)(g)(i). In its consideration of the matter,
the Court found that:
"...Although the term 'factual data' is not defined by statute, the
meaning of the term can be discerned from the purpose
underlying the intra-agency exemption, which is 'to protect the
deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549]). Consistent with this limited aim to safeguard internal
government consultations and deliberations, the exemption does not apply when the requested material consists of 'statistical or factual tabulations or data' (Public Officers Law
87[g][i]. Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of
government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v.
Yudelson, 68 AD2d 176, 181-182)." (Gould, supra, 276-277).
In accordance with the direction offered by the Court of Appeals, insofar as records
prepared by a consultant for the Village consist of statistical or factual information, it would
appear that they must be disclosed.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Trustees