July 28, 2009

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.


            I have received your letter in which you requested an advisory opinion pertaining to the application of the Open Meetings Law in your capacity as Chairman of the Town of New Hartford Planning Board.

            You focused on Section 118.41.3 of the Town Code Concerning a “Business Park District.”  The cited provision concerning “staff review of site plans for infrastructure and building in a business park” states  that “staff review shall include the Superintendent of Highways, the Codes Enforcement Officer, the Town Planner and/Engineer and the Planning Board Chairperson or their designee”, that staff, as described in the preceding clause, “shall review proposed projects” and “shall have final approval authority concerning proposed projects by new or existing park occupants.”  It also states that “[a]ll development proposals...shall be subject to design review and approval by staff”, that staff “shall meet at the convenience of the members as often as necessary” and “shall have the authority to approve, approve with modifications or disapprove any plans and specifications submitted to the Town of New Hartford for the business park...”  In addition, staff has the authority to require a performance bond and “determine if additional site review is required...”

            In this regard, I believe that the term “staff” typically refers to employees who offer support,  expertise, advice and assistance to others who function as decision makers.  However, as I understand the meaning of “staff” as it is used in the provision of the Town Code to which you referred, “staff” consists of the four individuals identified in the Code, those four function collectively, as a body, and they have decision making authority.  If that is so, I believe that the staff in this context constitutes a public body required to comply with the Open Meetings Law.

            That statute is applicable to meetings of public bodies, and §102(2) defines the phrase “public body” to mean:

"...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 public body."

            From my perspective, each of the conditions necessary to conclude that the “staff” constitutes a public body can be met.  There are four members who conduct public business collectively and take action as a group.  By so doing and carrying out their powers and duties, staff performs a governmental function for a public corporation, the Town of New Hartford.  While there may be no specific reference to a quorum requirement in the Code, a separate statute, §41 of the General Construction Law, requires that “Whenever three or more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly as a board or similar body”, they may carry out their duties only through the presence of a quorum and action taken by majority of the vote the total membership of such entity.

            Assuming the accuracy of the foregoing and that the staff constitutes a public body required to comply with the Open Meetings Law, every meeting of the staff must be preceded by notice of the time and place.  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.  

            Additionally, §106 of the Open Meetings Law concerns minutes of meetings and requires that they consist of a record or summary of motions, proposals, resolutions, action taken and the vote of the members.  Further, that provision requires that minutes of open meetings be prepared and made available within two weeks of the meetings to which they pertain.

            You also raised a “related concern” and questioned whether “plans and related documents used in the Business Park staff review [are] subject to FOIL.”  It is clear, in my opinion, that they are, for the Freedom of Information Law pertains to all government agency records, and §86(4) defines the term “record” 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."

In consideration of the breadth of the definition and, therefore, the scope of the Freedom of Information Law, plans and related documentary material acquired or prepared by staff constitute “records” that fall within the coverage of that statute.

            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 (j) of the law.

            Plans and related materials submitted to staff by applicants are likely accessible, for none of the grounds for denial of access would be pertinent in most instances.

            I hope that I have been of assistance.



                                                                                                Robert J. Freeman
                                                                                                Executive Director