Submission Date:
Question:
The Governor signed S1150A/A1228A into law [on] October 19, 2021. Now Chapter 481, this change requires that open meeting documents be available upon request or posted to the public body's website at least 24 hours prior to the open meeting at which the documents will be discussed. Can you comment?
AND
Several libraries have questions regarding the new Open Meetings Law S1150A/A1228A
The law requires that open meeting documents be available upon request or posted to the public body’s website at least 24 hours prior to the open meeting at which the documents will be discussed. https://nyassembly.gov/leg/?default_fld=&leg_video=&bn=A01228&term=2021&Summary=Y&Memo=Y&Text=Y
Do libraries that furnish the documents upon request also have to post the documents on their websites?
Does a library have to post the documents on their website 24 hours in advance, if no one requests them?
What encompasses agency documents that “will be discussed”? I assume it includes agenda, previous meeting minutes, director’s report, treasurer’s report, proposed annual budget, etc. What about a new personnel manual that is enormous, or, a board member who introduces items under “new business” but does not submit them ahead of time to add to the agenda?
How long does a library have to leave the documents up on their website after the meeting takes place?
Will this new law remain in effect if the Gov. does not extend the modification to Open Meetings Law after January 15, 2022?
Answer:
Because there are a lot of layers here, let's start with some bedrock fundamentals.
Bedrock #1: All NY-chartered libraries, including association libraries, must abide by the Open Meetings Law (the "OML"), a New York State law which requires certain meetings be accessible in real time to the general public.[1]
Bedrock #2: While all chartered libraries must follow the OML, only public libraries, as quasi-governmental agencies, are subject to its cousin, the Freedom of Information Law ("FOIL").[2]
Bedrock #3: As the members write, the OML has been changed to require the posting of materials to be reviewed at least 24 hours in advance of a meeting. For libraries, this means that even if the library is not an "agency" subject to FOIL, the documents to be reviewed at the meeting--unless disclosure is barred for an express reason, such as attorney-client privilege[3]--must be posted.
Okay, with three sturdy bedrocks to build on, let's lay the foundation for the answers.
As stated before, the OML was recently changed to require advance posting of materials to be reviewed at a meeting.[4]
According to the Assembly memo that accompanied the bill, here is the basis for the change:
[S]ection 103 of the Open Meetings Law [currently only] requires agencies to make
any documents to be discussed at an upcoming open meeting available to
the public, "to the extent practicable." This vague phrase has created
loopholes and a way for agencies to bypass this requirement. In an anal-
ysis of 41 local governments conducted by the New York Coalition for
Open Government, 15 percent do not post meeting documents.
COVID-19 has made it apparent that there is technology readily available
for agencies to use in an effort to be more transparent. Meetings are
only taking place virtually and individuals are at an immense disadvan-
tage because there is no in-person opportunity to request a hard copy of
any documents at the meeting. Therefore, it is even more important that
agencies utilize the technology available to post documents online where
the public can effectively access them.
The exact wording adopted to address these concerns, found in Section 103 of the New York Public Officers Law, goes into effect November 18th, and reads:
Agency records available to the public pursuant to article six of this chapter, as well as any proposed resolution, law, rule, regulation, policy or any amendment thereto, that is scheduled to be the subject of discussion by a public body during an open meeting shall be made available, upon request therefor, to the extent practicable at least twenty-four hours prior to the meeting during which the records will be discussed. Copies of such records may be made available for a reasonable fee, determined in the same manner as provided therefor in article six of this chapter. If the agency in which a public body functions maintains a regularly and routinely updated website and utilizes a high speed internet connection, such records shall be posted on the website to the extent practicable at least twenty-four hours prior to the meeting. An agency may, but shall not be required to, expend additional moneys to implement the provisions of this subdivision.
And with that "the Assembly hath spoken," and we can answer the questions.
Question 1: Do libraries that furnish the documents upon request also have to post the documents on their websites?
If a library "maintains a regularly and routinely updated website and utilizes a high speed internet connection" the documents must be "posted on the website to the extent practicable."
I take this to read "If your library website has an event calendar you maintain, you need to get your meeting documents up on it at least 24 hours before the meeting."
Question 2: Does a library have to post the documents on their website 24 hours in advance, if no one requests them?
If a library "maintains a regularly and routinely updated website and utilizes a high speed internet connection" the documents must be "posted on the website to the extent practicable" even if no one has requested them.
What encompasses agency documents that “will be discussed”? I assume it includes agenda, previous meeting minutes, director’s report, treasurer’s report, proposed annual budget, etc.
Small note: Even before this change, the minutes should already be available, since Section 106 of the OML expressly requires availability within two weeks of the meeting.
Answer for public libraries: Every document that will be reviewed at the meeting.
Answer for association libraries: If you don't want to be a test case regarding the interaction of FOIL and the OML, post every document that will be reviewed at the meeting. If you do want to be a test case, cite the slightly imperfect writing that describes what is to be disclosed ("Agency records available to the public pursuant to article six of this chapter"), and say that since your library is not an “agency” per Article 6 of the Open Meetings Law, and thus not subject to FOIL (see Bedrock #2), you don't need to provide a darn thing.
I am kidding. Don't do that. I am writing the Committee on Open Government to request guidance on this issue, and I am fairly confident they will confirm that the intent is that the entire board packet is required to be posted, even when the subject organization is not subject to FOIL; I will post a follow-up when I get some input.
Question 3: What about a new personnel manual that is enormous, or a board member who introduces items under “new business” but does not submit them ahead of time to add to the agenda?
Large documents should be posted; per the new section of the law, if requested in hard copy, the library can charge a "reasonable fee."
Regarding "new business," if the new business raised is only verbal, there is no problem. If, however, the "new business" is a letter, article, or proposed policy, the board action should be confined to establishing the next steps to be taken once proper posting can be effected. And if the "new business" must be handled on an emergency or expedited basis, that can be done via a meeting of the Executive Committee,[5] with any action ratified in a later meeting, with the written content shared in advance as required.
How long does a library have to leave the documents up on their website after the meeting takes place?
I am sure there will be more guidance on this in the future, but for now, I read the law as requiring the posting to be "to the extent practicable," meaning for as long as the content can be posted without causing undue expense or burden on the system.
Will this new law remain in effect if the Gov. does not extend the modification to Open Meetings Law after January 15, 2022?
Unlike the current change to the OML regarding remote attendance (which is currently in effect, and sunsets in January of 2022), this modification of the OML Section 103 goes into effect on November 18th and stays with us until it is struck down by a court (not likely) or changed by the Assembly (not likely, except for slight refinements).
Where we'll see some follow-up and guidance about this new law is from the Committee on Open Government. The COOG, as they call it, posts notice of its meetings here: https://opengovernment.ny.gov/committee-news. I'll be sending a question about the scope of document disclosure by association libraries, and if you tune into the next meeting (when it is scheduled), you will likely see me in the WebEx as a mute observer.
Thanks for a thoughtful and timely array of questions. Stay tuned.
[1] This is required by Section 260-a of the New York Education Law, which is the law that allows the creation of such libraries. So public access is baked into a chartered library's DNA.
[2] See the Committee on Open Government advisory opinion at https://docsopengovernment.dos.ny.gov/coog/ftext/f16795.htm, which states: "For purposes of applying the Freedom of Information Law, I do not believe that an association library, a private non-governmental entity, would be subject to that statute; contrarily, a public library, which is established by government and "belongs to the public" [Education Law, §253(2)] would be subject to the Freedom of Information Law." That said, all documentation an association library generates and submits to a governmental agency is subject to a FOIL request to that agency.
[3] My personal favorite disclosure exemption, of course.
[4] This was not the only change; there were also temporary changes regarding remote attendance. See ATL “Open Meetings Law and end of NYS' Emergency Status - 06/30/2021” for more on that, (we'll also tackle it in one of the questions here).
[5] NOTE: Per the Section 260-a of the Education Law, in cities with a million or more people, even the committee meetings must be open.
