July 6, 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 June 1 and the correspondence attached to it. You have sought assistance in relation to certain activities and practices in the Village of Seneca Falls.
As I understand the issues that you described, many relate to what you what you
characterized as the firing of "a capable and efficient Village Administrator without cause or
explanation." In this regard, I was recently informed that the Village Administrator,
following the initiation of a lawsuit, will be reinstated to her position. While the issues may
relate to that incident, several deal generally with the implementation of the Open Meetings
and Freedom of Information Laws, and in consideration of the advisory jurisdiction of the
Committee on Open Government, the following comments will focus only on those matters. First, there is nothing in the Open Meetings Law that directly addresses the matter of
notice of special meetings. Nevertheless, that statute 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 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. 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 the
local news media and by posting notice in one or more designated locations.
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.
Second, the Open Meetings Law clearly provides the public with the right "to observe
that go into the making of public policy" (see Open Meetings Law, §100). However, the Law is silent with respect to the issue of public participation. Consequently, by means of
example, if a public body does not want to answer questions or permit the public to speak or otherwise participate at its meetings, I do not believe that it would be obliged to do so. On the other hand, a public body may choose to answer questions and permit public
participation, and many do so. When a public body does permit the public to speak, I believe that it should do so based upon reasonable rules that treat members of the public equally.
While public bodies have the right to adopt rules to govern their own proceedings (see
e.g., Town Law, §63), the courts have found in a variety of contexts that such rules must be
reasonable. For example, although a board of education may "adopt by laws and rules for its government and operations", in a case in which a board's rule prohibited the use of tape
recorders at its meetings, the Appellate Division found that the rule was unreasonable, stating that the authority to adopt rules "is not unbridled" and that "unreasonable rules will not be sanctioned" [see Mitchell v. Garden City Union Free School District, 113 AD 2d 924, 925 (1985)]. Similarly, if by rule, a public body chose to permit certain citizens to address it for ten minutes while permitting others to address it for three, or not at all, such a rule, in my view, would be unreasonable.
Third, with respect to minutes of meetings, §106 of the Open Meetings Law provides
"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 meetings to which they pertain.
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 prepared and made available to the extent required by the Freedom of Information Law within one week of the executive session. If no action is taken, there is no requirement that minutes of the executive session be prepared.
Lastly, since you referred to "untimely responses for public records under the Freedom of Information Law", I point out that that statute 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)].
In an effort to enhance compliance with and understanding of open government laws, copies of this opinion will be forwarded to Village officials.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Trustees
Deputy Village Clerk