December 4, 2015

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, except as otherwise indicated.

Dear :

We are in receipt of your request for an advisory opinion regarding application of the Open Meetings Law (OML) and Freedom of Information Law (FOIL) to the Albany County Land Bank Corporation (Land Bank) and its Board of Directors.  Please accept our apologies for the delay in response.

As stated in its by-laws, the Land Bank was formed pursuant to Article 16 of the Not-for-Profit Corporation Law.  Article 16 of the Not-for-Profit Corporation Law is known as “The Land Bank Act.”  Section 1612 of the Act states:

“Public records and public meetings (a) The board shall cause minutes and a record to be kept of all its proceedings. Except as otherwise provided in this section, the land bank shall be subject to the open meetings law and the freedom of information law.”

In your letter, you raise concerns regarding availability of agendas at the Board’s regular monthly meetings.  In this regard, there is nothing in the OML or any other law of which I am aware that deals specifically with agendas. While many public bodies prepare agendas, the OML does not require that they do so. Similarly, the OML does not require that a prepared agenda be followed. However, a public body on its own initiative may adopt rules or procedures concerning the preparation and use of agendas.

Further, while the OML requires that notice of a meeting be given to the public and the news media, the notice must refer only to the time and place of the meeting; there is no requirement that the notice include reference to the subjects to be considered at a meeting. Specifically, §104 of the OML states in relevant part 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."

You also raised a concern regarding the availability of policies to be discussed at the Board meetings.  Section 103(e) of the OML states:

“Agency records available to the public pursuant to [FOIL], 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. Copies of such records may be made available for a reasonable fee, determined in the same manner as provided therefor in article six of this chapter. If the agency in which a public body functions maintains a regularly and routinely updated website and utilizes a high speed internet connection, such records shall be posted on the website to the extent practicable as determined by the agency or the department, prior to the meeting. An agency may, but shall not be required to, expend additional moneys to implement the provisions of this subdivision.”

In summary, the policies to be discussed at the Board meeting should be made available prior to a Board meeting, to the extent practicable, and to the extent that no grounds for denial under §87(2) of FOIL exist. 

Finally, you requested guidance concerning information on specific properties the Land Bank would be required to disclose under FOIL. 

FOIL pertains to the public's right to gain access to government records, and §86(4) of FOIL 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."

As a general matter, FOIL 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 FOIL.  Most of the exceptions relate to the possibility of harm that could arise by means of disclosure.  That being so, the content of the records and effects of disclosure must be considered in determining rights of access.  It is suggested that the Land Bank should review all FOIL requests to determine whether it possesses records that are responsive to the request and to determine whether any grounds exist to deny access to any of the records or portions thereof. 
I hope that I have been of assistance. 


Kristin O’Neill
Assistant Director