HomeMy WebLinkAboutMemorandum- Lesislative Alert Amendments to Open Meetings Law 103.PDFMEMORANDUM - LESISLATIVE ALERT
A}/IENDMENTSToOPENMEETINGSLAWSI'03
As many already may know, particulf,rly Town.glkt the Governor recently signed
legislation amending the Public Offi;e1s L"y. ("POL"), Article 7, -S -103
(commonly
knows as the open Meetings Law ("oML")), by adding a new subdivision (e)' This
legislation was signed into law uponi6ttntty 3:20:2and, by its terms, takes effect upon
February g,2012.This is legislation illut tutg"l4 fley.under the radar unheralded; and
while its goals are laud.able, the impfcts atid flscal. implications could be quite large'
Interestingly, in the iegislative memfrarrdum the local fiscal impacts were listed as
"11one" - which is demonstrably false'
The text of this ner,l,law is short, but ils implications are not:
The People of the state of New York, representerj in senate and Assembly' c1o
enact as follows:
section 1. Section 103 of the pudHc officers law is amended by adding a new
subcLivision (e) to reacL as folio..Js: (e) Agency records available to the public
pursuarLt to article sixof this chafter,'as well as any proposed resolution' law'
rule, regulatiorr, policy or any a$en,lment fhereto, that is scheduled to be the
subject of cliscussiorr by u p,rUfic body during an open rneeting shall be
made available., upon request iherpfor, to ihe extent practicable as determined b-V
the agency or tn" clepartmenf, prlor to oI at the rnceting cluring which
the recorcls wi1be discussed. Cofies of such rec.rcls may be made available for
a reasonable fee, determine<j in tlle same manner as provided therefore in article
six of thi.s If the agencrv in] which a public body functions m'aintains a
regularly and routinely updateri website and utilizes a high speed internet
connection, such recoicls stritl Ue fc,steci 'n the website to the extent practicable
as determined by the agency ot t$* clepartment, prior to the meeting' An agenc'V
may, but shall not be i*qrir"d tf,, **p*nd a,lditional moneys to irnplement the
provisions of tlhis subdivision'
g2. This act slhall take effect on tf,e thirtietl-r day aftel it shall have become a law'
The first clause ()f S 1 seems relafivety clear - extra copies of what the Board is
reviewing, or whLat the Board *u/ tuty upon jn making a determination' must be
available either before or at the .nu"fi"g so tihat the public is better able to follow along
and understand what a Board is consfdering. Many towns already do this - however'
this law seems to expand the scope Qf current practices to require the production of
whatever is under r,eiiew, including background or supporting materials, as it requires
the availability of any documents thal are subject to the Freedom of Information Law
(,,FOIL," also kr,o*s as POL Article 6). There are certainly issues here to consider, and
each document must be checked to dee whether it is subject to FOIL, whether it is
privileged, whether it may impact contract or other negotiations, or whether it contains
ioforrnitio., that is protriUiiea frory disclosure (such as personally identifying
information).
However, and despite the workload that will be placed uPon town officers and
employees by this first clause of g 1, thb second clause of S 1 is problematic as is requires
the'posting of such information upon the town website prior to the meeting.
So, what does this all mean, particularly considering that almost every town in New
York has a website? Here are some tofics and answers to consider:
1,. This applies to any "Ager,.yj' ur defined in POL Article 6; thus including the
Town Board, the Planning boatJ, the board of Zoning Appeals, and other public bodies
that meet the defin.ition oJ "Agency." Pet POL S 86, any " Agerrcy" means "any state or
municipal departrnen! boaid, 6rtpu.t, division, commission, committee, public
authority, pubiic corporatiory council, office or other governmental entity performing a
gorr"rr,*ur,tu1 o, proprietary functio{ for the state. or any one or mole municipalities
Ihereof, except the jiudiciary or the sta{e legislature'"
2, The production of paper "ofi"t can allow a town to be reimbursed per the
Town's FOIL ruler; o, pro."d.nr"r, ULt in no case beyond what is permitted by POL
Article 6. FOIL itself has becom" u ,rlorurs with technical rulings, substantial fines for
non-compliance, etc. FOIL was amenped in 2005,2006,2008, and again in201l' In some
years there was more than one u*"np*"nt, and this does not count the evolving rules
tf pro.udure, the 'ngoing advisory {Pinions of the Committee on Open Government'
o, ihu changes in luJicial interpretali,ott ut to what is and what is not reqit::*:,::
disclosed, oi what is exempt from disclosure. The "inter-agency" materials exemption
from FOIL is just one example wherd the law is in flux. Hence, and once again, many
, ,a ' 1
towns should take a hard lobk at FOII- and the oML and generally update their laws or
procedures accord inglY.
This law requires that anY ocument that could be required to be produced3.
under FOIL now t'e posted on a to
applies only to municipalities that
that utilizes a high speed internet
term "high speed" refers to the town
's website in advance of the meeting - though this
intain a regularly and routinely updated website
nnection. What is "regulatly" and whether the
access to the site or the access available to the ISP
matters left unclear. For towns that meet thislocation where the site is hosted
definition, which ifr this area will bd most towns, gteat care must be exercised to
exclude iterns not subject to FOIL, srich as inter-ageicy materials' sensitive materials
that are excluded fi:om the reach of pbn, legai advice, opinions, and other privileged
matters, and matters pertaining to p.rror,ril inJormation or Personally identifying
information. of employu"s or ci[izen, 1r". POL Article 6-A for more on the Personal
Privacy Protection'Lu*). General exemptions for FoIL are spelled out in POL S 87;
however, be forewarned, PoL s 87 does not cover or describe all FOIL exemptions as'
for example, there ilre privileges that hrise in law, such as the attorney-client privilege'
the privilege agaiLnst disclosure of personal -medical information, oI privileges
inJormation pertainLing to the mandatory non-disclosure of certain disabilities'
4. The rule seems to be one of practicality - whether it is feasibie and practical to
place such record.s online. Thus, ut lf now-, large.plats or huge documents might not
fall under this rule; similarly, docunlents that arrive at the last second would not be
covered. F{owever, most documents and submissions would be covered, such as local
laws, petiti.ons, letters, applications, praft resolutions, etc' There are some significant
issues hiding here, s,rch L, the appliJation of this law to Planning Boards that may be
reviewing hundreds of pages of ir'formation about a proposed subdivision' from
topograp"hical maps, .orr"r'pondencps, dozens of large maps, -stormwater
reports'
SWppps, etc. As well, there is bound [o be an issue with draft resolutions' Many towns
have resolutions prepared in advancf to revie* and document the action, and usuaily
the history and bar;islor the decision. However, to the public this may look like an issue
has been pre-determined when , in f{ct, we know.that draft resolutions are just that -
drafts - they are often amended, .rpa[ted, lccep-te{.or rejected, depending upon subject
matter, the discussion of the To#n Board, including input from-the public' and the
actual vote as may be tallied. But, this is not ho* having a dtaft resolution wili
sometimes be Perceived....
S. We are unsure as to whethel a[ bills and vouchers are subject to this rule' POL
S 87 exclrrdes outside audits, but {oes not address the internal audits of vouchers
('puying the bills") that occurs at least monthly at reguiar Town Board meetings'
Ind.eed, Town Law S 1L9 requir", u for-rr"cutive numbering of claims-("bi11s") that must
be audite<l by the supervisor, upon which an_ abstract is usually built and reviewed at
or before a meeting, arrd at which {neeting the abstract is approved and bill thus are
authorized to be pXia Since this iJ an "aftion" \y u covered "agency," and as S 11.9
requires the clainis , audit, und ,ro,rlhers to be publicly available-for inspection' is this
then something tlhat must be place{ on the *"btit" as well? Must every bill paid at
every meeting no'w be posted o"li"ef togetherwith the numbered audit and the abstract
of such bills? ReeLlly? A strict readi{,e Jf tnit law suggests that the answer is " yes"' but
we instead urge towns to considet tfrit as imp_ractiff due to the volume of materials'
the excessive timr: that would be nefded to redact information that is priviieged or-not
subject to disclosirre, among other ,!uro.,' However, we also suspect that some ruling
Overall, this law seems more about transparency of government than anything else -
and in such circumsitance it is probablf a good idea as we live in an area where we are
blessed with many helpful and knowledgeable citizens whose informed input could
only help. The problem is the cost and developing a regular system to make sure this
happens, as well as discerning the releVant and feasible documents from those that just
cannot be scanned, or those that should not be made available (personnel matters and
litigation issues are easy examples that come to mind).
Undertaking the role of a cynic, one chnnot help but wonder webmasters, web design
and computer/netv,zork support contrlctors, and ISPs, who are often paid by the hour
for this work, have a powerful lobby we have not yet heard of. Compliance with this
law for every boar<l, commission, corymittee, etc., will very likely require three to six
website postings and updates monthlj. Absent having qualified personnel on staff who
possess (or can lear:n) these skills, wtrlo have the time necessary to parse through and
scan d.ocuments, as well as the time td identify what should not be disclosed or what is
illegal to post, it seems that these outdide web and internet contractors will necessarily
see their workloads, and their revenues, rise in the very near future.
Overall, we highly recommend that ihe phrase"as determined by the agency or the
department" bA tal:e quite literally artd tnat each town deveiop and approve a policy
that covers these dgcuments and this *rew law. Any determination of what is posted or
what is excluded rmust be rea and a case-by-case determination of what is
reasonable under the circumstances ight prove problematic (and it could likely only
lead to complaints or claims). The b(tter options is to have some written policies and
procedures so that such determinafi have a reasonable basis underlying and
supporting them and, as importantly, so they do
could be perceived as "selective bias."
not appear to be ad hoc decisions that
could be perceived as "selective bias."
We are available to assist with the implementation of processes and procedures as may
be needed to implement a system that complies with this new law. Please feel free to
contact us for assistance:
on this issue may be issued bY
stay tuned.. ..
on Open Government or the courts, so
Lorraine Moynihan Schmitt, Esq.
Thaler & Thaler
309 North Tioga Street
Ithaca, New York 1.4851'-0266
Telephone : (607 ) 27 2-231'4
Facsimile: (607) 27 2-8466
LSchmi bt@'I'ha lela nd'I'lr a le r. conr)
Guy K. Krogh, Esq.
Thaler & Thaler
309 North'Iioga Street
Ithaca, Nerv York L485L-0266
Telephone; (607) 272-231,4
Facsimile:'(607) 27 2-8466
GKro gh€9T'haleranclf'haler. com
the Clmmittee
alerand'fI'rale