Public Disclosure of Agency Determinations/Information

Question 1

What is the Open Meetings Law?

Answer 1

Certain meetings of PUBLIC BODIES are subject to the Open Meetings Law, which requires certain transparency to the public

Question 2

What are the three requirements of the open meetings law?

Answer 2

1. The meeting must be open to the public (EXCEPT the parts of the meeting that qualify as an executive session);
2. Notice of the meeting must be given in advance of the meeting; AND
3. Minutes of the meeting must be taken and made available to the public within 2 weeks of the meeting OR 1 week of an executive session

Question 3

What are the requirements for proper notice of a meeting under the open meetings law?

(WHAT)

(WHEN)

(TO WHOM)

(HOW)

Answer 3

WHAT: Time, place, and date

WHEN: If meeting is scheduled one week or more in advance: 72 hours notice; all other meetings: “Reasonable time”

TO WHOM: Release notice to the news media and the public (release on website is OK)

HOW: Release in one or more designated locations (e.g., newspaper) and, if possible, online

Question 4

What are some examples of bodies to which the open meetings law applies?

Answer 4

1. City councils
2. Town boards
3. School boards
4. Commissions
5. Legislative bodies
6. Committees and subcommittees made up of members of (1)-(5)

Question 5

What are two bodies to which the open meetings law does NOT apply?

Answer 5

1. Judicial or quasi-judicial proceedings (other than public service commission and zoning board meetings); and
2. Meetings of political parties, even if public business is discussed

Question 6

What meetings are subject to the open meetings law?

Answer 6

A meeting is subject to the OML if:

1. The meeting is held by a public body;
2. A quorum of the public body is present (i.e., enough to adopt a resolution); AND
3. The public body is engaged in a deliberative process.

Question 7

When does a public body engage in a deliberative process?

Answer 7

The public body engages in a deliberative process (e.g., a school board meeting) when it discusses any matter on which it may then take action.

(N.B. It doesn’t matter if the group doesn’t intend to take action at that meeting or ever, just that they could!)

(N.B. The OML only applies to “official meetings,” so social gatherings are not covered!)

Question 8

What is an executive session?

Answer 8

A portion of a public meeting from which the public may be excluded

Question 9

How is an executive session convened?

Answer 9

In order to close the meeting and go into an executive session,

1. A member of the public body must make a motion to enter an executive session;
2. The motion must identify the general area(s) of the subject to be considered; AND
3. The motion must be carried by a majority vote OF THE TOTAL MEMBERSHIP of the public body.

Question 10

What are the permissible matters of discussion for an executive session? (8)

Answer 10

An executive session may only be convened for the following matters:

1. Matters that may imperil the public safety if disclosed;
2. Matters that could disclose the identity of a law enforcement agent or informant;
3. Information related to current or future criminal investigations or prosecutions that would imperil law enforcement if disclosed;
4. Information regarding pending or current litigation;
5. Collective bargaining negotiations;
6. The medical, financial, credit, or employment history of a particular person or corporation;
7. Matters relating to exams (e.g., the bar!); AND
8. Matters relating to transactions involving real property or securities IF disclosure would affect their value

Question 11

May action be taken at the meeting to appropriate public monies?

Answer 11

No!

Question 12

When are meeting minutes required?

Answer 12

Minutes must be taken of any action taken by formal vote

Question 13

Who may bring a suit for violation of the open meetings law?

Answer 13

Any “aggrieved” person

Question 14

What makes a person aggrieved w/r/t bringing a suit for violation of the open meetings law?

Answer 14

A person may be aggrieved if:

1. Improperly excluded from a meeting, OR
2. An executive session was improperly held

Question 15

What is the remedy if the court determines that the OML was violated?

Answer 15

The court MAY declare that the action taken at the violative meeting is VOID;

EXCEPT that an unintentional failure to comply with the notice requirements is not in itself grounds for declaring an action void.

Question 16

When must a court award attorneys fees?

Answer 16

When the public body:

1. Voted in private in material violation of the law; OR
2. Undertook substantial deliberations in private, which should have been done in public.

Question 17

What is the Freedom of Information Law (FOIL)?

Answer 17

Administrative agencies and the state legislature MUST make certain records available to the public

Question 18

What is the procedure for a FOIL request?

Answer 18

1. A person makes a written request for a record (broadly defined, includes information stored in any physical form (e.g., electronic data, audio recordings, and writings))
2. The agency must respond within 5 BUSINESS DAYS of the receipt of the request (must PROVIDE the info, DENY the request, or APPROXIMATE the date that the info will be provided)
3. If possible, the agency must provide the record to the person in the medium requested

Question 19

What kinds of records are exempt from disclosure under a FOIL request? (5 types)

Answer 19

The principal types of records that do not need to be disclosed under FOIL are those records that, if disclosed, would:

1. Constitute an unwarranted invasion of privacy;
2. Hinder law enforcement efforts;
3. Endanger the life or safety of any person; OR
4. Jeopardize the agency’s ability to guarantee the security of its electronic information systems.

ALSO,

5. Inter- or intra-agency e-mails/memos/reports that are “pre-decisional” (i.e., they contain opinions, advice, recommendations, etc. on how the agency should proceed) EXCEPT portions of such materials that consist of statistical or factual information.

Question 20

What is the procedure/timeline for a remedy of a denial of access to records under FOIL?

(When must a person appeal?)

(When must an agency respond?)

(What if the agency denies access?)

Answer 20

1. A person who is denied access to a record may appeal to the agency in writing within 30 days of the denial.
2. The agency must respond within 10 days of recieving the request BY EITHER explaining the reason for denial OR providing access.
3. If the agency appeal results in a denial of access, the person MAY commence an Art. 78 proceeding to review the denial. (If the denial is based on a claimed exemption, the agency has the burden of proof to show that the record falls within the exemption.)