YOUR RIGHT TO KNOW
New York State's OPEN GOVERNMENT LAWS
George E. Pataki Alexander F. Treadwell,
Governor Secretary of State
Committee on Open Government
o Freedom of Information Law
o Open Meetings Law
o Personal Privacy Protection Law
William Bookman, Chairman David A. Schulz
Peter Delaney Gilbert P. Smith
Walter W. Grunfeld Alexander F. Treadwell
Elizabeth McCaughey Patricia Woodworth
Warren Mitofsky Robert Zimmerman
Wade S. Norwood
Robert J. Freeman, Executive Director
You should know -- a 12-page brochure regarding the Personal
Privacy Protection Law is also available free of charge from the
Committee on Open Government.
THE COMMITTEE
The Committee on Open Government is responsible for overseeing
the implementation of the Freedom of Information Law (Public
Officers Law, sections 84-90) and the Open Meetings Law (Public
officers Law, sections 100-111). The Freedom of Information Law
governs rights of access to government records, while the Open
Meetings Law concerns the conduct of meetings of public bodies
and the right to attend those meetings. The committee also
administers the Personal Privacy Protection Law.
The committee is composed of 11 members, 5 from government and 6
from the public. The five government members are the Lieutenant
Governor, the Secretary of State, whose office acts as
secretariat for the committee, the Commissioner of General
Services, the Director of the Budget, and one elected local
government official appointed by the Governor. Of the six public
members, at least two must be or have been representatives of the
news media.
The Freedom of Information Law directs the committee to furnish
advice to agencies, the public and the news media, issue
regulations and report its observations and recommendations to
the Governor and the Legislature annually. Similarly, under the
Open Meetings Law, the committee issues advisory opinions,
reviews the operation of the law and reports its findings and
recommendations annually to the Legislature.
When questions arise under either the Freedom of Information Law
or the Open Meetings Law, the committee can provide written or
oral advice and mediate in controversies in which rights may be
unclear. Since its creation in 1974, more than 9,000 written
advisory opinions were prepared by the committee at the request
of government, the public and the news media. In addition,
several thousand oral opinions have been provided by telephone.
If you need advice regarding either the Freedom of Information
Law or the Open Meetings Law, feel free to write to:
Committee on Open Government
NYS Department of State
162 Washington Avenue
Albany, NY 12231
or call (518) 474-2518.
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THE FREEDOM OF INFORMATION LAW
The Freedom of Information Law, effective January 1, 1978,
reaffirms your right to know how your government operates. It
provides rights of access to records reflective of governmental
decisions and policies that affect the lives of every New Yorker.
The law preserves the Committee on Open Government, which was
created by enactment of the original Freedom of Information Law
in 1974.
Scope of the Law
The law defines "agency" to include all units of state and local
government in New York State, including state agencies, public
corporations and authorities, as well as any other governmental
entities performing a governmental function for the state or for
one or more units of local government in the state (section
86(3)).
The term "agency" does not include the State Legislature or the
courts. As such, for purposes of clarity, "agency" will be used
hereinafter to include all entities of government in New York,
except the State Legislature and the courts, both of which will
be discussed later.
What is a Record?
The law defines "record" as "any information kept, held, filed,
produced or reproduced by, with or for an agency or the State
Legislature, in any physical form whatsoever..." (section 86(4)).
Thus it is clear that items such as tape recordings, microfilm
and computer discs fall within the definition of "record."
ACCESSIBLE RECORDS
The original statute granted rights of access to nine specified
categories of records to the exclusion of all others. Therefore,
unless a record conformed to one of the categories of accessible
records. it was presumed deniable.
The current law, reversing that presumption, states that all
records are accessible, except records or portions of records
that fall within one of nine categories of deniable records
(section 87(2)).
Deniable records include records or portions thereof that:
(a) are specifically exempted from disclosure by state or
federal statute;
(b) would if disclosed result in an unwarranted invasion of
personal privacy;
(c) would if disclosed impair present or imminent contract
awards or collective bargaining negotiations;
(d) are trade secrets or are submitted to an agency by a
commercial enterprise or derived from information obtained
from a commercial enterprise and which if disclosed would
cause substantial injury to the competitive position of the
subject enterprise;
(e) are compiled for law enforcement purposes and which if
disclosed would:
i. interfere with law enforcement investigations or
judicial proceedings;
ii. deprive a person of a right to a fair trial or
impartial adjudication;
iii. identify a confidential source or disclose confidential
information relative to a criminal investigation; or
iv. reveal criminal investigative techniques or procedures,
except routine techniques and procedures;
(f) would if disclosed endanger the life or safety of any
person;
(g) are inter-agency or intra-agency communications, except to
the extent that such materials consist of:
i. statistical or factual tabulations or data;
ii. instructions to staff that affect the public;
iii. final agency policy or determinations; or
iv. external audits, including but not limited to audits
performed by the comptroller and the federal
government.
(h) are examination questions or answers that are requested
prior to the final administration of such questions; or
(i) are computer access codes.
The categories of deniable records are generally directed to the
effects of disclosure. They are based in great measure upon the
notion that disclosure would in some instances "impair," "cause
substantial injury," "interfere," "deprive," "endanger," etc.
This represents a significant change from the thrust of the
original enactment.
One category of deniable records that does not deal directly with
the effects of disclosure is exception (g), which deals with
inter-agency and intra-agency materials. The intent of the
exception is twofold. Memoranda or letters transmitted from an
official of one agency to an official of another or between
officials within an agency may be denied, so long as the
communications (or portions thereof) are advisory in nature and
do not contain information upon which the agency relies in
carrying out its duties. For example, an opinion prepared by
staff which may be rejected or accepted by the head of an agency
need not be made available. However, the facts, policies and
determinations upon which an agency relies in carrying out its
duties should be made available.
There are also special provisions in the law regarding the
protection of trade secrets. Those provisions pertain only to
state agencies and enable a person submitting records to state
agencies to request that records be kept separate and apart from
all other agency records on the ground that they constitute trade
secrets. In addition, when a request is made for records
characterized as trade secrets, the submitter of such records is
given notice and an opportunity to justify a claim that the
records would if disclosed result in substantial injury to his or
her competitive position. A member of the public requesting
records characterized as trade secrets or a state agency at any
time may challenge a claim that records constitute trade secrets.
Generally, the law provides access to existing records.
Therefore, an agency need not create a record in response to a
request. Nevertheless, each agency must compile the following
records (section 87(3)):
(a) a record of the final vote of each member in every agency
proceeding in which the member votes;
(b) a record setting forth the name, public office address,
title and salary of every officer or employee of the agency;
and
(c) a reasonably detailed current list by subject matter of all
records in possession of an agency, whether or not the
records are accessible.
Protection of Privacy
One of the exceptions to rights of access, referred to earlier,
states that records may be withheld when disclosure would result
in "an unwarranted invasion of personal privacy" (section
87(2)(b)).
Unless otherwise deniable, disclosure shall not be construed to
constitute an unwarranted invasion of personal privacy when
identifying details are deleted, when the person to whom a record
pertains consents in writing to disclosure, or when upon
presenting reasonable proof of identity, a person seeks access to
records pertaining to him or her.
HOW TO OBTAIN RECORDS
Subject Matter List
As noted earlier, each agency must maintain a "subject matter
list." The list is not a compilation of every record an agency
has in its possession, but rather is a list of the subjects or
file categories under which records are kept. It must make
reference to all records in possession of an agency, whether or
not the records are available. You have a right to know the kinds
of records agencies maintain.
The subject matter list must be compiled in sufficient detail to
permit you to identify the file category of the records sought.
Regulations
Each agency must adopt standards based upon general regulations
issued by the committee. These procedures describe how you can
inspect and copy records. The committee will provide a copy of
its regulations on request.
Designation of Records Access Officer
Under the regulations, a records access officer (or officers)
must be appointed to coordinate an agency's response to public
requests for records.
The records access officer is responsible for keeping the subject
matter list up to date, assisting you in identifying records
sought, making the records promptly available or denying access,
providing copies of records or permitting you to make copies,
certifying that a copy is a true copy and, if the records cannot
be found, certifying either that the agency does not have
possession of the requested records or that the agency does have
the records, but they cannot be found after diligent search.
The regulations also state that the public shall continue to have
access to records through officials who have been authorized
previously to make information available.
Requests for Records
An agency may ask you to make your request in writing. The law
merely requires you to "reasonably describe" the record in which
you are interested (section 89(3)). The responsibility of
identifying and locating records sought rests to an extent upon
the agency. However, if possible, you should supply dates,
titles, file designations, or any other information that will
help to find requested records.
Within five business days of the receipt of a written request for
a record reasonably described, the agency must make the record
available, deny access in writing giving the reasons for denial,
or furnish a written acknowledgment of receipt of the request and
a statement of the approximate date when the request will be
granted or denied.
Fees
Copies of records must be made available on request. Except when
a different fee is prescribed by statute, an agency may not
charge for inspection, certification or search for records, or
charge in excess of 25 cents per photocopy up to 9 by 14 inches
(section 87(1)(b)(iii)). Fees for copies of other records may be
charged based upon the actual cost of reproduction.
If an agency has no photocopying equipment, a transcript of
records must be made on request. However, you may be charged for
the clerical time involved.
Denial of Access and Appeal
A denial of access must be in writing, stating the reason for the
denial and advising you of your right to appeal to the head or
governing body of the agency or the person designated to hear
appeals by the head or governing body of the agency. You may
appeal within 30 days of a denial.
Upon receipt of the appeal, the agency head, governing body or
appeals officer has 10 business days to fully explain in writing
the reasons for further denial of access or to provide access to
the records. Copies of all appeals and the determinations thereon
must be sent by the agency to the Committee on Open Government
(section 89(4)(a)). This requirement will enable the committee to
monitor compliance with law and intercede when a denial of access
may be improper.
You may seek judicial review of a final agency denial by means of
a proceeding initiated under Article 78 of the Civil Practice Law
and Rules. When a denial is based upon one of the exceptions to
rights of access that were discussed earlier, the agency has the
burden of proving that the record sought falls within one or more
of the exceptions (section 89(4)(b)).
A new provision in the Freedom of Information Law permits a
court, in its discretion, to award reasonable attorney's fees
when a person challenging a denial of access to records in court
substantially prevails. To award attorney's fees, a court must
find that the record was of "clearly significant interest to the
general public" and that the agency "lacked a reasonable basis at
law for withholding the record." While a court may award
attorney's fees, such an award is not mandatory.
Public Notice
The regulations require that each agency post conspicuously
and/or publicize in a local newspaper:
o locations where records are made available;
o the name, title, business address and telephone number of
the records access officer; and
o the right to appeal a denial of access and the name and
business address of the person or body to whom appeals
should be directed.
ACCESS TO RECORDS OF THE STATE LEGISLATURE
Section 88 of the Freedom of Information Law applies only to the
State Legislature and provides access to the following records in
its possession:
(a) bills, fiscal notes, introducers' bill memoranda,
resolutions and index records;
(b) messages received from the Governor or the other house of
the Legislature, as well as home rule messages;
(c) legislative notification of the proposed adoption of rules
by an agency;
(d) transcripts, minutes, journal records of public sessions,
including meetings of committees, subcommittees and public
hearings, as well as the records of attendance and any votes
taken;
(e) internal or external audits and statistical or factual
tabulations of, or with respect to, material otherwise
available for public inspection and copying pursuant to this
section or any other applicable provision of law;
(f) administrative staff manuals and instructions to staff that
affect the public;
(g) final reports and formal opinions submitted to the
Legislature;
(h) final reports or recommendations and minority or dissenting
reports and opinions of members of committees,
subcommittees, or commissions of the Legislature; and
(i) external audits conducted pursuant to Section 92 of the
Legislative Law and schedules issued pursuant to Section
90(2) of the Legislative Law (note: this remains in effect
until Jan. 1, 1994);
(j) any other records made available by any other provision of
law.
In addition, each house of the Legislature must maintain and make
available:
(a) a record of votes of each member in each session, committee
and subcommittee meeting in which the member votes;
(b) a payroll record setting forth the name, public office
address, title and salary of every officer or employee; and
(c) a current list, reasonably detailed, by subject matter of
any records required to be made available by section 88.
Each house is required to issue regulations pertaining to the
procedural aspects of the law. Requests should be directed to the
public information officers of the respective houses.
ACCESS TO COURT RECORDS
Although the courts are not subject to the Freedom of Information
Law, section 255 of the Judiciary Law has long required the clerk
of a court to "diligently search the files, papers, records and
dockets in his office" and upon payment of a fee make copies of
such items.
Agencies charged with the responsibility of administering the
judicial branch are not courts and therefore are treated as
agencies subject to the Freedom of Information Law.
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SAMPLE REQUEST LETTER
Records Access Officer
Name of Agency
Address of Agency
City, NY, zip code
Re: Freedom of Information Law Request
Dear Records Access Officer:
Under the provisions of the New York Freedom of Information Law,
Article 6 of the Public Officers Law, I hereby request records or
portions thereof pertaining to ________________________________
(attempt to identify the records in which you are interested as
clearly as possible).
If there are any fees for copying the records requested, please
inform me before filling the request (or: ...please supply the
records without informing me if the fees are not in excess of
$__________).
As you know, the Freedom of Information Law requires that an
agency respond to a request within five business days of receipt
of a request. Therefore, I would appreciate a response as soon as
possible and look forward to hearing from you shortly.
For any reason any portion of my request is denied, please inform
me of the reasons for the denial in writing and provide the name
and address of the person or body to whom an appeal should be
directed.
Sincerely,
Signature
Name
Address
City, State, zip code
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SAMPLE APPEAL LETTER
Name of Agency Official
Appeals Officer
Name of Agency
Address of Agency
City, NY, zip code
Re: Freedom of Information Law Appeal
Dear
I hereby appeal the denial of access regarding my request, which
was made on (date) and sent to (records access officer, name and
address of agency).
The records that were denied include: (enumerate the records that
were denied).
As required by the Freedom of Information Law, the head or
governing body of an agency, or whomever is designated to
determine appeals, is required to respond within 10 business days
of the receipt of an appeal. If the records are denied on appeal,
please explain the reasons for the denial fully in writing as
required by law.
In addition, please be advised that the Freedom of Information
Law directs that all appeals and the determinations that follow
be sent to the Committee on Open Government, Department of State,
162 Washington Avenue, Albany, New York 12231.
Sincerely,
Signature
Name
Address
City, State, zip code
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THE OPEN MEETINGS LAW
The Open Meetings or "Sunshine" Law went into effect in New York
in 1977. Amendments that clarify and reaffirm your right to hear
the deliberations of public bodies became effective on October 1,
1979.
In brief, the law gives the public the right to attend meetings
of public bodies, listen to the debates and watch the
decisionmaking process in action.
As stated in the legislative declaration in the Open Meetings Law
(section 100): "It is essential to the maintenance of a
democratic society that the public business be performed in an
open and public manner and that the citizens of this state be
fully aware of and able to observe the performance of public
officials and attend and listen to the deliberations and
decisions that go into the making of public policy."
What is a Meeting?
Although the definition of "meeting" was vague as it appeared in
the original law, the amendments to the law clarify the
definition in conjunction with expansive interpretations of the
law given by the courts. "Meeting" is defined to mean "the
official convening of a public body for the purpose of conducting
public business." As such, any time a quorum of a public body
gathers for the purpose of discussing public business, the
meeting must be convened open to the public, whether or not there
is an intent to take action, and regardless of the manner in
which the gathering may be characterized.
Since the law applies to "official" meetings, chance meetings or
social gatherings are not covered by the law.
Also, the law is silent with respect to public participation.
Therefore, a public body may permit you to speak at open
meetings, but is not required to do so.
What is Covered by the Law?
The law applies to all public bodies. "Public body" is defined to
cover entities consisting of two or more people that conduct
public business and perform a governmental function for the
state, for an agency of the state, or for public corporations,
including cities, counties, towns, villages and school districts,
for example. In addition, committees and subcommittees are
specifically included within the definition. Consequently, city
councils, town boards, village boards of trustees, school boards,
commissions, legislative bodies and committees and subcommittees
of those groups all fall within the framework of the law.
Notice of Meetings
The law requires that notice of the time and place of all
meetings be given prior to every meeting.
If a meeting is scheduled at least a week in advance, notice must
be given to the public and the news media not less than 72 hours
prior to the meeting. Notice to the public must be accomplished
by posting in one or more designated public locations.
When a meeting is scheduled less than a week in advance, notice
must be given to the public and the news media "to the extent
practicable" at a reasonable time prior to the meeting. Again,
notice to the public must be given by means of posting.
When Can a Meeting be Closed?
The law provides for closed or "executive" sessions under
circumstances prescribed in the law. It is important to emphasize
that an executive session is not separate from an open meeting,
but rather is defined as a portion of an open meeting during
which the public may be excluded.
To close a meeting for executive session, the law requires that a
public body take several procedural steps. First, a motion must
be made during an open meeting to enter into executive session;
second, the motion must identify "the general area or areas of
the subject or subjects to be considered"; and third, the motion
must be carried by a majority vote of the total membership of a
public body.
Further, a public body cannot close its doors to the public to
discuss the subject of its choice, for the law specifies and
limits the subject matter that may appropriately be discussed in
executive session. The eight subjects that may be discussed
behind closed doors include:
(a) matters which will imperil the public safety if disclosed;
(b) any matter which may disclose the identity of a law
enforcement agency or informer;
(c) information relating to current or future investigation or
prosecution of a criminal offense which would imperil
effective law enforcement if disclosed;
(d) discussions regarding proposed, pending or current
litigation;
(e) collective negotiations pursuant to Article 14 of the Civil
Service Law (the Taylor Law);
(f) the medical, financial, credit or employment history of a
particular person or corporation, or matters leading to the
appointment, employment, promotion, demotion, discipline,
suspension, dismissal or removal of a particular person or
corporation;
(g) the preparation, grading or administration of examinations;
and
(h) the proposed acquisition, sale or lease of real property or
the proposed acquisition of securities, or sale or exchange
of securities held by such public body, but only when
publicity would substantially affect the value thereof.
These are the only subjects that may be discussed behind closed
doors; all other deliberations must be conducted during open
meetings.
It is important to point out that a public body can never vote to
appropriate public monies during a closed session. Therefore,
although most public bodies may vote during a properly convened
executive session, any vote to expend public monies must be taken
in public.
The law also states that an executive session can be attended by
members of the public body and any other persons authorized by
the public body.
After the Meeting -- Minutes
If you cannot attend a meeting, you can still find out what
actions were taken, because the Open Meetings Law requires that
minutes of both open meetings and executive sessions must be
compiled and made available.
Minutes of an open meeting must consist of "a record or summary
of all motions, proposals, resolutions and any matter formally
voted upon and the vote thereon." Minutes of executive sessions
must consist of "a record or summary of the final determination"
of action that was taken, "and the date and vote thereon."
Therefore, if, for example, a public body merely discusses a
matter during executive session, but takes no action, minutes of
an executive session need not be compiled. However, if action is
taken, minutes of the action taken must be compiled and made
available.
It is also important to point out that the Freedom of Information
Law requires that a voting record must be compiled that
identifies how individual members voted in every instance in
which a vote is taken. Consequently, minutes that refer to a four
to three vote must also indicate who voted in favor, and who
voted against.
Enforcement of the Law
What can be done if a public body holds a secret meeting? What if
a public body makes a decision during an executive session that
should have been open?
Any "aggrieved" person can bring a lawsuit. Since the law says
that meetings are open to the general public, you would be
aggrieved if you feel that you have been improperly excluded from
a meeting or if you believe that an executive session was held
that should have been open.
Upon the judicial challenge, a court has the power to nullify
action taken by a public body in violation of the law "upon good
cause shown." In addition, a court also has the authority to
award reasonable attorney fees to the successful party. This
means that if you go to court and you win, a court may (but need
not) reimburse you for your expenditure of legal fees.
It is noted that an unintentional failure to fully comply with
the notice requirements "shall not alone be grounds for
invalidating action taken at a meeting of a public body."
The Site of Meetings
As specified earlier, all meetings of a public body are open to
the general public. Moreover, the law requires that public bodies
make reasonable efforts to ensure that meetings are held in
facilities that permit "barrier-free physical access" to
physically handicapped persons.
Exemptions from the Law
The Open Meetings Law does not apply to:
(1) judicial or quasi-judicial proceedings, except proceedings
of zoning boards of appeals;
(2) deliberations of political committees, conferences and
caucuses; or
(3) matters made confidential by federal or state law.
Stated differently, the law does not apply to proceedings before
a court or before a public body that acts in the capacity of a
court, to political caucuses, or to discussions concerning
matters that might be made confidential under other provisions of
law. For example, federal law requires that records identifying
students be kept confidential. As such, a discussion of records
by a school board regarding a particular student would constitute
a matter made confidential by federal law that would be exempt
from the Open Meetings Law.
REV (10/92)
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