by Cindy Goldstein -
On April 29 Deputy Director and Counsel Kristin O’Neill from the Committee on Open Government (COOG) conducted a refresher course and update on the Open Meetings Law and FOIL (Freedom of Information Law) at Village Hall for elected and appointed officials and staff. O’Neill stated that these two laws ensure that the public has the ability to know and understand what their elected officials are doing.
Besides elected officials, staff and appointed committee members from the Village, representatives from the Town of Rye were present at the meeting and staff from Rye City and Scarsdale attended via Zoom. See Presentation HERE.
Open Meetings Law (OML)
It is essential that public officials act in an open and public manner and that citizens be “fully aware of and able to observe the performance of public officials.” This was the legislative intent when the OML was enacted in 1976. The law applies to “public bodies” which includes any group for which a quorum is required to conduct public business, and which consists of two or more members. At the meeting, there was a lively discussion about which Village committees the law applies to and why. Details regarding if a meeting may be conducted by videoconference (e.g., Zoom) evolved due to Covid 19 protocols and O’Neill discussed recent changes.
Notice provisions require that the date, time and location (including instructions for virtual participation if appropriate) must be distributed prior to every meeting to the media and placed in a designated physical location. Notice must also be posted on the website. In addition to the general meeting notice the records to be discussed at the meeting must be posted online at least 24 hours before the meeting. Examples of records include proposed resolutions, laws and policies along with records (or portions of them) that are available to the public. Records to be discussed in executive session are not included here.
Minutes of the meetings must include motions, proposals and resolutions for any matter formally voted on and the results of the votes. Minutes from an open session must be available within two weeks, even if they are still in draft format. Minutes from an executive session are required only if an action is taken (e.g., a vote) and must be available within one week. The Village must also post meeting minutes on their website. Unedited video/audio recordings qualify as minutes.
The topic of Executive Sessions pointed out aspects of the law which were not always followed. A motion to go into an Executive Session must be made at an open meeting along with the vote results. The motion must be specific and fall within the definition of matters that qualify. (See HERE.) O’Neill stressed the fact that a motion to discuss “personnel” is not valid as the term does not appear in the law. She also pointed out that a session for “advice of counsel” must actually include conferring with counsel.
Freedom of Information Law (FOIL)
O’Neill described the “presumption of access” which is the assumption that all government records are accessible and subject to FOIL disclosure. Then the municipality will work backwards to determine if the record requested fits into one of the permissible grounds for denial.
Every municipality must have a Records Access Officer designated by name or specific job title. Their job includes coordinating the response to the request for access to records. The definition of “Records” is very broad and includes information “in any physical form whatsoever….” Augie Fusco, Clerk-Treasurer, is the Records Access Officer for the Village.
The person making the FOIL request also has responsibilities – they must provide sufficient detail so the municipality can locate the records. The municipality is not required to create records that don’t exist or answer questions.
There is an exception for “intra” and “inter” agency communications although statistics and objective facts must be released See HERE. Certain information exempt from FOIL under NYS law must be withheld (e.g., attorney/client privilege matters and social security numbers, etc.). See Page HERE. See Grounds for Denial HERE. Requests may be made anonymously.
Once a FOIL request is received, the municipality has a strict timetable upon which to act on the request. See HERE.
Appeals
There is a process to appeal any denial of documents. See HERE.
Enforcement
It was made clear that COOG does not have any enforcement authority for violations for either OML or FOIL laws. Instead, anyone challenging the legality of an action must bring an Article 78 lawsuit where the court has authority to award costs and attorney’s fees, invalid the action and/or require training.
In her wrap-up O’Neill said that the COOG was available to anyone with questions. See contact information HERE.
