Open Meeting Law & Freedom of Information Act
MHLS Across The Board | Spring 2008
“The legislature hereby finds that a free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government”.
-Public Officers Law, Article 6, Sections 84-90, Freedom of Information Law
Public libraries in America have been called a “cornerstone of democracy.” This label refers to the public’s experience in using our libraries, their ability to freely access information for education, employment, enjoyment, and self-government. It is also a label that should reflect the library’s internal governance structure, specifically, adherence to laws impacting open government and freedom of information.
Running the library in an open environment is essential, not only because the law says so, but for the purposes of building community support for the library. Behaving in a responsive, transparent and accountable way strengthens your position in the community, and helps build trust.
All residents have the right to know how you run the library, how decisions are made, and how funds are managed within the organization. Two New York State laws specifically impact public oversight of your library:
Open Meetings Law (OML). The Open Meetings or “Sunshine” Law went into effect in New York in 1977. The law gives the public the right to attend meetings of public bodies, listen to the debates and watch the decision-making process in action. To be clear, it does not give the public the right to speak at the meeting, however the Board can allow the public to speak, either through a defined public comment period, or simply by recognizing them from the floor.
OML applies to all public libraries. OML is contained within Public Officers Law, which applies to municipal, special district and school district public libraries. Association libraries and systems must also function in accordance with OML as stated in Education Law section 260-a.
Under OML the public has the right to attend your board meetings. A “meeting” is defined as “the official convening of a public body for the purpose of conducting public business.” Therefore, any time a quorum of the board is together for the purpose of discussing library business – including committees, subcommittees and “working meetings” – the meeting must be open to the public. However, committee meetings of association libraries that serve a population under 1 million (which would be all association libraries in the MHLS region) do not fall under the Education Law provision and are excluded.
To ensure that your meeting is open to the Public:
- Publicize meeting dates to the public in advance of your meeting.
- A list of dates should be sent to all area newspapers and advertised within the library. Tip: at the library’s annual organizational meeting the “newspaper(s) of record” should be identified.
- Notice must be given to the public and the news media not less than 72 hours prior to a meeting.
- If an emergency board meeting needs to be called notice must be given to the public and the news media “to the extent practicable” at a reasonable time prior to the meeting. [Committee on Open Government]
- Notifying trustees of meeting dates: NYS Education Law 226 states that trustees must be sent notice of each meeting at least five (5) but not more than ten (10) business days prior to the meeting. Tip: A reviewable copy of each month’s board packet must be made available in the library.
- Meetings should be held in an accessible location.
- If your library is not accessible to people with physical handicaps, you must make reasonable accommodations.
- Develop a policy to help someone who is physically handicapped understand the procedure for notifying the board that they would like to attend.
- Define a time-frame for making a request so there is adequate time to respond, for example, if you need to change the venue of the meeting to accommodate the request and still get the proper notifications out or to locate a sign-language translator.
- Understand what constitutes a quorum.
The library by-laws must establish what determines a quorum – the minimum number of trustees required in attendance necessary to conduct business.
- Board members must be present to vote. You may not vote by email. A trustee may vote by phone but only if they are calling into an open meeting. Decisions may not be made by through a “phone chain.” (Videoconferencing is permitted, but the videoconferencing sites must be open to the public and noted in the notice of the meeting.)
- No action can be approved without a “majority of the whole”. For example, if your Board consists of seven members, an affirmative vote of four is always required for a motion to pass, regardless of the number of trustees in attendance. Tie votes defeat the motion. [Handbook for Library Trustees of New York State, 2010 edition]
- Use the “closed” or executive session option legally.
Going into executive session may only be done for eight specific reasons defined by law:
- matters which will imperil the public safety if disclosed
- any matter which may disclose the identity of a law enforcement agency or informer
- information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed
- discussions regarding proposed, pending or current litigation
- collective negotiations pursuant to Article 14 of the Civil Service Law (the Taylor Law)
- 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
- the preparation, grading or administration of examinations
- 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.Executive sessions must happen within the context of an open meeting. To go into executive session a scheduled meeting would be called to order, a trustee can move to go into executive session for the purposes of …[see eight options above]. The board president can then invite whomever they wish to stay – the director, the library’s lawyer, etc. Once finished with the executive session anyone dismissed from the room must be invited back in before the meeting can be adjourned. If an action was decided upon it should be reported in the open meeting setting and noted in the minutes.
- Take adequate minutes at your meeting.
This makes it possible for those who could not attend the meeting to read the minutes and have a good understanding of the business conducted at the meeting.
- 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.” If you only discuss a matter during executive session, but take no action, you do not have to take minutes of the executive session. However, if action is taken, minutes of the action taken must be compiled and made available.
- The Freedom of Information Law (discussed in-depth below) requires that a voting record must be compiled that identifies how individual members voted in every instance in which a vote is taken. For example, minutes that refer to a four to three vote must also indicate who voted in favor, and who voted against.
- A draft of minutes from an executive session should be made available within a week; draft minutes from the full meeting should be available within two weeks.
Freedom of Information Law
The New York State Committee on Open Government has an excellent web site that includes all the basics about the Freedom of Information Law as well as an excellent archive of OML advisory opinions:
- The Freedom of Information Law or “FOIL” includes public libraries (municipal, special district, and school district) but not association libraries. While association libraries do not fall under FOIL, it is advisable to consider similar policies since they are generally supported by public funds. [Handbook for Library Trustees of New York State, 2010 edition]
- FOIL is NYS legislation designed to facilitate the “people’s right to know.” It pertains to the process of decision-making and public access to the documents and statistics that lead to decisions. The public has the right to request to view or access documents that fall under the law.
- Generally, the law provides access to existing records. Therefore, a library does not need to create a record in response to a request. However, your library must retain the following:
- a record of the final vote of each member in every agency proceeding in which the member votes
- a record setting forth the name, public office address, title and salary of every officer or employee of the agency
- reasonably detailed current list by subject matter of all records in possession of an agency, whether or not the records are accessible. [NYS Committee on Open Government]
- A record retention schedule which lists types of records (library records and business records / documents) and the length of time each type must be retained is available on the MHLS web site.
- A Word About the Confidentiality of Patron Records –
Chapter 112, Laws of 1988, provides that any library records that personally identify users of libraries shall be confidential. Requests for these records by the general public should be refused by law. Any questions regarding access to these records should be directed to the NYS Committee of Open Government at 518.474.2518. Library staff should follow a board-approved procedure for responding to law enforcement inquiries for patron information. A sample procedure is available on the MHLS web site
- Responding to FOIL Requests
- Designate a records access officer (or officers) to coordinate a response to a request for records. The responsibilities of the records access officer are listed at http://www.dos.ny.gov/coog/Right_to_know.html#foil
- Create a form to have the requester put their request in writing and to describe the documents they want.
- Respond to the request within five business days. A response may be the documents requested, a denial of access*, or a written acknowledgment of receipt of the request and a statement of the approximate date when the request will be reviewed or granted or denied.
- State the reason for any denial in writing and advise the person of their right to appeal to the director or board of the library. A requester must make an appeal within 30 days of a denial.
- Let people know if there is a charge for copying the requested documents. This charge may not exceed 25 cents per copy.
- Deniable Records:
The categories of deniable records are based on the idea that disclosure would in some instances “impair,” “cause substantial injury,” “interfere,” “deprive,” “endanger,” etc. The regulations require that you post in the library: locations where records are made available; the name, title, business address, and telephone number of records access officer; and the right to appeal a denial of access and the name and business address of the person or body to who appeals should be directed.
Deniable Records include records or portions thereof that:
- are specifically exempted from disclosure by state or federal statute (see above regarding the confidentiality of patron records)
- would if disclosed result in an unwarranted invasion of personal privacy
- would if disclosed impair present or imminent contract awards or collective bargaining negotiations;
- 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
- are compiled for law enforcement purposes and which if disclosed would:
- interfere with law enforcement investigations or judicial proceedings
- deprive a person of a right to a fair trial or impartial adjudication
- identify a confidential source or disclose confidential information relative to a criminal investigation
- would if disclosed endanger the life or safety of any person;
- are inter-agency or intra-agency communications, except to the extent that such materials consist of:
- statistical or factual tabulations or data
- instructions to staff that affect the public
- final agency policy or determinations
- extermal audits, including but not limited to, audits performed by the comptroller and the federal government
- are examination questions or answers that are requested prior to the final administration of such questions
- are computer access codes
For more information, visit the NYS Office on Open Government.