“The Open Meetings Law gives the public a window on what government is doing,” said Robert Freeman, Executive Director of the New York State Committee on Open Government, addressing a crowd of over 60 people at the Woodstock Community Center on March 9. “Go to a meeting, and you can see who’s smart, who may not be, who’s awake, who’s sleeping, who’s well-prepared, who’s not. You can figure out who to vote for next time around.”
Working the crowd like an entertainer, Freeman paced the aisle with a microphone, inviting questions, which he answered with an apparently encyclopedic knowledge of New York’s open government law, citing court decisions and quoting whole sentences of the relevant laws. Some of his answers surprised the audience, which included council members from several towns, library board trustees, activists, at least one county legislator, and other interested citizens.
Freeman continued his introduction to the information session by pointing out that the Freedom of Information Law (FOIL), which requires government to respond to requests for such records as the minutes of official meetings, is misnamed. “It’s an ‘access to records’ law. It doesn’t require government officials to answer questions. If the information exists in some physical form, FOIL applies.”
As the nation has learned from Hillary Clinton’s experience, FOIL applies to emails as well as to paper correspondence. “We in town government have town government IDs,” said one council member, referring to her email address. “I use that ID for town business. Does it matter what computer I use?”
Freeman said emails related to town business and sent from a home computer are subject to inspection by the public. “It’s a government agency record. This is one of the beauties and one of the difficulties too. When it was all on paper, it was so much easier. Now there’s a great deal that did not exist before. The laws are based on common sense and reasonableness. All they say is that everything is available and open except to the extent that disclosure would hurt someone, government or a private company.”
An activist said that when the news broke last year that Niagara Bottling was planning to take water from Cooper Lake, “We began FOILing all the agencies involved. The economic development proposal they had made was out of reach for a long time, and when it did reach us, it was redacted heavily. Who decides?”
“Every agency is required to designate one records access officer, who has the duty of coordinating responses to requests,” replied Freeman. “That person determines which elements are public and which are not. The hope is that they will look at opinions that deal with similar kinds of issues or records. I refer to the Rolling Stones principle of law: You can’t always get what you want…but you might get what you need.”
In the case of Niagara Bottling, he said, the justification for obliterating parts of the records was “competitive harm,” an exception that refers to trade secrets, which could cause “substantial injury to competitive enterprise. If embarrassment was one of the grounds for FOIL, there would be nothing left of those laws. You were probably frustrated, but if push came to shove, most of what you requested should have been approved. Look at our website. Use it.”
Freeman was referring to the NYS Committee on Open Government website, https://www.dos.ny.gov/coog, which contains the text of relevant laws, legal case summaries, and over 25,000 opinions on questions of open government, written by committee staff and searchable by topic. The staff is also available to answer questions from the public, government officials, and news media.
Sunlight disinfectant
Someone asked what recourse other than a lawsuit is available if a FOIL request is refused. Freeman quoted Justice Louis Brandeis, saying, “‘Sunlight is the best disinfectant.’ You tell the world — get in touch with the newspaper, and when they write about it, the government doesn’t like that at all, especially when they call me for the quote. Sometimes that will be enough to encourage compliance. If I don’t upset someone in government every day of my life, it’s because I didn’t go to work.”
In answer to a question about the records of contractors performing work on a town facility, Freeman said if the contractor has conveyed reports of progress or costs to the town, which may be specified in their contract, those records can be FOILed. As for public utilities, if the company is privately held, such as Central Hudson, most of their records are exempt.
There was a long discussion about the reasons for a body going into executive session, which excludes the public. Freeman said the justification for withdrawal has to be explicitly stated when the board votes to initiate the executive session. Minutes of executive sessions are recorded only with regard to voting. If no action is taken, no minutes are required. If a member of the public wants to know what has occurred, said Freeman, “I suggest we should rely on one of the rules of human nature — someone on practically every board is willing to spill his or her guts after the fact.”
Topics justifying executive session include ongoing collective bargaining with a union, strategies for ongoing legal action, and evaluation of a prospective employee. “Personnel issues,” often cited by boards, are not in and of themselves a valid reason, said Freeman. “There’s no law that says that, but we Americans begin to believe something is true when we hear it over and over, and then we begin to lose our rights. Some personnel-related issues may be discussed, but others cannot. When the school board is talking about the budget — it’s tight this year, do we really need an art teacher position at the elementary school? That’s not a personnel matter — it involves policy. But they must enter into executive session to discuss the performance of a particular person and the possibility of terminating employment.”
Mere threat of litigation does not permit executive session. It is required for discussing the medical, financial, or credit history of a particular person or corporation. Freeman suggested bringing a copy of the law to meetings and interrupting if proper justification for an executive session is not stated, although the name of the individual being discussed in the session does not have to be given. Board self-evaluation, he said, is not a valid reason.
A former library trustee asked, “What advice can you give to a library board when it’s being FOILed so much, it’s almost a form of harassment?”
“You can require the request to be made in writing,” said Freeman. “If they want copies of records, you can ask for the money up front. An applicant must reasonably describe the records requirement, and they have to be findable by the filing system. An agency is not required to go through records like a needle in a haystack. If they have the ability to extract data maintained electronically, it’s easier.” Denial of a request has to be given in writing, with the reasons for the denial and the information that the requester can appeal the decision through the court system.
Open Meetings Law
Regarding Open Meetings Law, Freeman pointed out that although the law gives the public the right to attend meetings, it says nothing about the public’s right to speak at meetings. Most entities give the public limited opportunities for self-expression, which should be applied across the board. If a parent is allowed to praise a teacher at a school board meeting, for example, there is no justification for muzzling a parent who wishes to complain about a teacher.
Speakers are not legally required to identify themselves, but if they do, that information should be included in the minutes — if the comment itself is noted. “OML has minimum requirements regarding contents of minutes,” said Freeman. “They must include summaries of resolutions and proposals and the votes of the board members. They don’t have to include anything else, but they can. There is no law that says minutes have to be approved. OML says nothing about agendas — it does not even require them. Anyone can audio record or video record or broadcast a meeting as long as the equipment is not intrusive.”
And what about a situation that recently occurred with the Shandaken zoning board, wherein a person FOILing minutes of a meeting from last year was told they weren’t available due to the incompetence of a former department secretary? “The law says minutes must be prepared. They can attempt to reconstruct them based upon people’s memories or a recording of the meeting. There are so many boards that do record and so do members of the public. You can go to an individual and ask for a copy.”
Most heartening to us reporters was Freeman’s comment about the news media: “Your mere presence has an effect on compliance. I encourage you to ask questions. We need truth-tellers more than ever before. Any idiot can establish a blog, but we don’t know who’s telling the truth and who’s not.”
Join the family! 
