From:                      Freeman, Robert J (DOS)
Sent:                        Tuesday, October 24, 2017 1:00 PM
Cc:                           Hoerz, Tyler (BUDGET)
Subject:                   RE: Open Meetings Law question


From my perspective, the response to your question, whether a resolution originally scheduled to be discussed during an open meeting but removed from the agenda and not considered or discussed during the meeting, should be available, is dependent on two factors.

First, as you are aware, §103(e) of the Open Meetings Law states that records scheduled to be discussed during an open meeting of a public body that are available pursuant to the Freedom of Information Law or that consist of proposed resolutions, laws, policies, rules and the like “shall be posted on the [agency’s] website to the extent practicable…prior to the meeting.”  What is “practicable” often differs from one situation to the next.  If, for example, a resolution is prepared less than an hour before a meeting, it may not be practicable to post the resolution online prior to a meeting. If, however, the resolution is prepared one or more work days prior to a meeting, to comply with §103(e), I believe that it should be posted on the entity’s website.

Second, and this is related to the last point offered in the preceding paragraph, if a resolution is prepared and distributed to members of a public body, and perhaps to staff or others one or more days prior to a meeting, again, in my view, it should be posted online prior to the meeting. If the resolution could have been distributed to its members and others, there would be appear to be little or no substantial basis for precluding transmission or distribution to or posting of the resolution for others.

Assuming that a public body has complied with law by posting a resolution on its website prior to a meeting, any member of the public would have the ability to view and download the resolution. Once it is posted online, it is public. Further, when it has become available in cyberspace, it remains available interminably. That the resolution may be removed from an agenda and not considered or discussed at a meeting would not in my opinion remove it from the scope of public rights of access.

I hope that I have been of assistance.