Public Disclosure and Other Determinations Flashcards
What are the procedural requirements for meetings that are OPEN MEETINGS?
Open Meetings Law
- Requirements:
Certain meetings of public bodies are subject to the Open Meetings Law. These meetings are subject to the requirements set out below:
(a) Open to the Public.
The meeting must be open to the public, other than those portions of a meeting that qualify as an executive session;
(b) Notice.
Notice of the meeting should be given in advance of it.
(i) What:TIME, PLACE, and DATE of meeting.
(ii) When: Meetings scheduled a week or more in advance – provide notice at least 72 HOURS BEFORE the meeting.
All other meetings – provide NOTICE a REASONABLE amount of TIME BEFORE the meeting.
(iii) To Whom: provide notice to THE NEWS MEDIA and THE PUBLIC including POSTING THE MTG on the agency’s WEBSITE.
(iv) How: by posting it in one or more DESIGNATED PUBLIC LOCATIONS and, when possible, ONLINE.
(c) Minutes.
Minutes of the meeting should be taken and made available to the public within 2 WEEKS after the meeting or 1 WEEK after an EXECUTIVE SESSION.
What public bodies are subject to open meetings laws?
Generally, a PUBLIC BODY =
(i) a governmental body that takes formal action by adopting resolutions; AND
(ii) is subject to quorum requirements (i.e., it cannot adopt resolutions unless quorum is present).
Examples of public bodies subject to the law:
(i) city councils,
(ii) town boards,
(iii) village boards of trustees,
(iv) school boards,
(v) commissions,
(vi) legislative bodies, and
(vii) committees and subcommittees consisting of members of those groups.
EXEMPTIONS
The Open Meetings Law does not apply to:
(i) Judicial or Quasi-Judicial proceedings, other than the public service commission and zoning boards; AND
(ii) meetings of political committees even if public business is discussed.
What Meetings are Subject to the Open Meetings Law?
Meetings Subject to the Open Meetings Law
The Open Meetings Law defines a “meeting” as “the official convening of a public body for the purpose of conducting public business.”
A meeting is subject to the Open Meetings Law if:
(i) A mtg is held by a public body;
(ii) A quorum of the public body is present; AND
(iii) The body engages in a deliberative process
DELIBERATIVE PROCESS:
The public body engages in a DELIBERATIVE PROCESS as a group, such as a school board meeting, WHEN it discusses ANY MATTER upon which it MAY then or later TAKE ACTION.
Remember it does not matter if the group doesn’t intend to take action OR how the gathering is LABELED or CHARACTERIZED.
Because the Open Meetings Law applies to “official” meetings, CHANCE MEETINGS or SOCIAL GATHERINGS are not covered by the law.
For example, if a quorum of a public body happens to be physically present (such as where the members are in an
audience or a training session), they are not engaged in a deliberative process because they are not conducting public business as a public body
How are EXECUTIVE SESSIONS CONVENED?
Executive Sessions: How Convened –
An executive session is not separate from an open meeting. Rather, it is a portion of an open meeting during which the public may be excluded. In order to close the meeting and go into an executive session, the public body must do the following while the meeting is open:
(i) a member of the public body MUST make a MOTION to enter into an executive session;
(ii) the motion MUST IDENTIFY the GENERAL AREA or areas of the subjects to be considered;
(iii) the MOTION MUST be CARRIED by a MAJORITY VOTE of the total membership of the public body
WHAT ARE PERMISSIBLE MATTERS FOR AN EXECUTIVE SESSION?
What action is prohibited?
Permissible Matters:
An executive session may only be conducted for the following matters:
(i) matters that may imperil the public safety if disclosed;
(ii) matters that may disclose the identity of a law enforcement agent or informant;
(iii) information relating to current or future criminal investigations or prosecutions that would imperil effective law enforcement if disclosed;
(iv) information regarding proposed, pending, or current litigation;
(v) collective bargaining negotiations pursuant to the civil service law;
(vi) the medical, financial, credit or employment history of a particular person or corporation;
(vii) matters relating to exams (such as the bar exam!);
(viii) matters relating to transactions involving real property or securities IF disclosure would substantially affect the value of the property or securities
Action Prohibited
In any event, no action may be taken at the meeting to
appropriate public monies.
What do the minutes need to contain?
Minutes Required.
Minutes must be taken of any action taken by formal
vote, but the minutes do not have to include records protected under the Freedom of Information Law
What happens if any of the open meeting laws are violated?
Actions for Violations of Open Meetings Law:
(a) Standing – Any “aggrieved” person can bring a lawsuit.
Because the Open Meetings Law provides that meetings are open to the general public, a person may be aggrieved if improperly excluded from a meeting OR if an executive session was improperly held
(b) Remedies – If a court determines that the Open Meetings Law was violated, it may declare that the action taken at the meeting was VOID, except that an UNINTENTIONAL failure to fully comply with the NOTICE rqmts is NOT a GROUND for declaring an action void
(c) Attorneys’ Fees –
(i) A court also has the authority to award reasonable attorneys’ fees to the successful party.
(ii) A court must award attorneys fees when the public body:
(a) VOTED in MATERIAL VIOLATION of the law; OR
(b) SUBSTANTIAL DELIBERATIONS OCCURRED in PRIVATE that should have OCCURRED in PUBLIC
How are records requested under the Freedom of Information Law (“FOIL”)?
Freedom of Information Law (“FOIL”)
Pursuant to FOIL, administrative agencies (as well as the state legislature) must make certain records available to the public.
Procedure
(i) a person makes a written request for the a record, which is defined broadly to include information stored in any physical form including paper records, audio and visual recordings and data stored electronically.
(ii) the agency must respond within 5 BUSINESS DAYS, either
a. providing the material;
b. denying the request; OR
c. providing the date that the material will be
provided
(iii) if possible, the agency must provide the record to the person in the medium requested
What records are exempt from disclosure under FOIL?
Records Exempted from Disclosure
FOIL provides a detailed list of records that do not have to be made available. The principal ones are:
(i) records, which if disclosed, would constitute an unwarranted invasion of another;s privacy;
(ii) records, which if disclosed, would hinder law enforcement efforts;
(iii) records, which if disclosed, would endanger the life and safety of any person;
(iv) records, which if disclosed, would jeopardize the agency’s ability to guarantee the security of its electronic informational systems
(v) inter- or intra-agency material (such as emails, memos or reports) that are pre-decisional (i.e., they contain advice, opinions, or recommendations on how the agency should proceed in a matter) except portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits.
NOTE: The purpose of the exemption for inter-agency and intra-agency material is to “to protect the deliberative process of government by ensuring that persons in an
advisory role would be able to express their opinions freely to agency decision makers.” Matter of Sea Crest Const. Corp. v. Stubing, 82 AD 2d 546, 549.
What are the remedies for denials of access to records under FOIL?
Remedies for Denial of Access to Records
(i) a person who is denied access to a record may appeal to the agency in writing within 30 DAYS OF THE DENIAL.
(ii) the agency must respond within 10 DAYS explaining the reason for the denial or supplying the requested records.
(iii) If the agency appeal results in a denial of access, the person may bring an ARTICLE 78 PROCEEDING for REVIEW of such DENIAL.
If the denial is based on a claimed exemption, the agency has the burden of proving the exemption.
