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STATE OF NEW YORK
DEPARTMENT OF STATE
COMMITTEE ON OPEN GOVERNMENT
Committee Members
Tedra L. Cobb
Lorraine A Cones-Vazquez
John C. Egan
Roben L. Megna
Gany Pierre-Pierre
Michelle K. Rea, Chair
Clifford Richner
David A Schulz
Roben T. Simrnelkjaer II
One Commerce Plaza, 99 Washington Ave., Suite 650, Albany, New York 12231
(518)474-2518
Fax (518)474-1927
Website Address: http://www.dos.state.ny.us/coog/index.html
September 1, 2009
Executive Director
Roben 1. Freeman
Albert P. Roberts, Esq.
Vergilis, Stenger, Roberts, Davis
& Diamond, LLP
1136 Route 9
Wappingers Falls, NY 12590
HECEIVED
SEP 0 8 2009
TOWN CLERv
Dear Mr. Roberts:
This is in follow up to our August 27th advisory opinion to you regarding a particular meeting
of the Wappinger Town Board. As referenced in your correspondence, we are now in receipt of
State Comptroller Opinion No. 83-54 and would like to take this opportunity to clarify our opinion
with respect to the "approval" of minutes by a town board.
By way of background, first, ~ 1 06 ofthe Open Meetings Law pertains to minutes of meetings
and states that:
"1. Minutes shall be taken at all open meetings of a public body
which shall consist of a record or summary of all motions, proposals,
resolutions and any other matter formally voted upon and the vote
thereon.
2. Minutes shall be taken at executive sessions of any action that is
taken by formal vote which shall consist of a record or summary of
the final determination of such action, and the date and vote thereon;
provided, however, that such summary need not include any matter
which is not required to be made public by the freedom of
information law as added by article six of this chapter.
3. Minutes of meetings of all public bodies shall be available to the
public in accordance with the provisions of the freedom of
information law within two weeks from the date of such meetings
except that minutes taken pursuant to subdivision two hereof shall be
available to the public within one week from the date of the executive
session. "
Albert P. Roberts, Esq.
September 1, 2009
Page - 2 -
In view of the foregoing, it is clear in our opinion that minutes of open meetings must be
prepared and made available "within two weeks of the date of such meeting."
There is nothing in the Open Meetings Law or any other statute of which we are aware that
requires that minutes be approved. Nevertheless, as a matter of practice or policy, many public
bodies approve minutes oftheir meetings. In the event that minutes have been approved, to comply
with the Open Meetings Law, it has consistently been advised that minutes be prepared and made
available within two weeks, and that if the minutes have not been approved, they may be marked
"unapproved", "draft" or "non-final", for example. By so doing within the requisite time limitations,
the public can generally know what transpired at a meeting; concurrently, the public is effectively
notified that the minutes are subject to change. If minutes have been prepared within less than two
weeks, we believe that those unapproved minutes would be available as soon as they exist, and that
they may be marked in the manner described above.
Viewing the issue from a different vantage point, the Freedom oflnformation Law makes no
distinction between drafts as opposed to "final" documents. FOIL pertains to all agency records, and
986(4) defines the term "record" to mean:
"any information kept, held, filed, produced, reproduced by, with or
for an agency or the state legislature, in any physical form whatsoever
including, but not limited to, reports, statements, examinations,
memoranda, opinions, folders, files, books, manuals, pamphlets,
forms, papers, designs, drawings, maps, photos, letters, microfilms,
computer tapes or discs, rules, regulations or codes."
Due to the breadth of the language quoted above, once a document exists, it constitutes a "record"
subject to rights of access, even if the record is characterized as "draft" or is unapproved. Further,
as a general matter, minutes consist of a factual rendition of what transpired at an open meeting. On
that basis, we believe that they are accessible (see Freedom oflnformation Law, section 87[2][g][I]).
Further, minutes often reflect final agency determinations, which are available under section
87(2)(g)(iii), irrespective of whether minutes are "approved". Additionally, in the case of an open
meeting, during which the public may be present and, in fact, may tape record the meeting (see
Mitchell v. Board of Education of the Garden City Union Free School District, 113 AD2d 924
[1985]), there would appear to be no valid basis for withholding minutes, whether or not they have
been approved.
On behalf of the Committee on Open Government we hope that this is helpful to you.
CSJ :jm
cc: Hon. Chris Masterson, Town Clerk
Town Board
Sincerely,
(tM-,- ~ dvv0 V'-
Camille S. Jobin-Davis
AssistaReeetVED
SEP 0 8 2009
TOWN ClERV
rlECelVED
SEP 0 I I
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TOWN CLEAv