April 29, 2014
FROM: Camille S. Jobin-Davis, Assistant 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 facts presented in your correspondence.
Dear Mr. Ruggiero:
This is in response to your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the City of Cortland. Specifically, you requested all versions and drafts of the City’s Local Law #1 amending Chapter 102 of the Rental Housing Law. The City provided a copy of Local Law #1 as filed with the Secretary of State, directed you to seek additional records via discovery, and denied access to drafts of proposed laws that are protected by the attorney-client privilege.
In this regard, as you likely know, 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 (l) of the Law.
However, records that are scheduled to be discussed at public meetings, such as proposed laws, are required to be made available pursuant to §103(e) of the Open Meetings Law, which requires in relevant part as follows:
“Agency records available to the public pursuant to article six of this chapter, as well as any proposed resolution, law, rule, regulation, policy or any amendment thereto, that is scheduled to be the subject of discussion by a public body during an open meeting shall be made available, upon request therefor, to the extent practicable as determined by the agency or the department, prior to or at the meeting during which the records will be discussed.”
Accordingly, to the extent that draft laws were required to be made available to the public during the course of public meetings, regardless of whether they may be characterized as records subject to the attorney-client privilege or whether the agency could have relied on an exception listed in §87(2), it is our opinion that if the proposed law was the subject of discussion at a public meeting and required to be made public at that time, there would be no basis in law to subsequently deny access to such records.
We hope that this is helpful.