Submission Date:
Question:
With recent updates to the OML in New York state, there is now a requirement both to stream and to make recordings of sessions available via website as described in 103(f).[1] However, the last two sentences of 103(f) seem to limit this requirement only to certain public bodies.
We are trying to understand whether or not this applies to a municipal library board's meetings or not. Certainly we do not have any members appointed by the board, and even if you go up to being chartered by the Board of Regents, Regents are elected by the legislature, so hard to see any applicability there.
Do you see any requirement in the open meetings law for library boards to have video recordings of their meetings posted publicly via the internet? Text of 103(f) below, or online here: https://opengovernment.ny.gov/system/files/documents/2022/02/oml-text-02282022.pdf
(f) Open meetings of an agency or authority shall be, to the extent practicable and within available funds, broadcast to the public and maintained as records of the agency or authority. If the agency or authority maintains a website and utilizes a high speed internet connection, such open meeting shall be, to the extent practicable and within available funds, streamed on such website in real-time, and posted on such website within and for a reasonable time
after the meeting. For the purposes of this subdivision, the term “agency” shall mean only a state department, board, bureau, division, council or office and any public corporation the majority of whose members are appointed by the governor. For purposes of this subdivision, the term “authority” shall mean a public authority or public benefit corporation created by or existing under any state law, at least one of whose members is appointed by the governor
(including any subsidiaries of such public authority or public benefit corporation), other than an interstate or international authority or public benefit corporation. [emphasis added]
[1] Editor footnote: the question slightly mis-states the Open Meeting Law's most recent requirements; we'll address this in the answer.
Answer:
Before we dive into the answer, I have to say two things.
First, just a reminder: the reason any chartered library--even an association library--has to follow the State's "Open Meetings Law" and allow public access to trustee meetings, is because Section 260-a of the Education Law requires it.[1]
Second: the timing of this question made it a real pain in the [law]. Here's why:
My first draft answer was written on March 29, 2022.
While the draft was in review, I realized there was a change to the law that I had not factored in.[2] So I pulled back the draft to revise.
While I was revising, the law was changed again![3]
This required yet another re-write.
So now, as of April 13, 2022--at the risk of Governor Hochul punking me with yet another change to the law--here is the short answer to this question:
103-e does NOT require a library board to record and post their meetings; that is limited to authorities and agencies with at least one member appointed by the governor.[4]
However, under OML 103(c), and per a current temporary add-on to the law,[5] trustee meetings must continue to be broadcast/recorded/transcribed, UNLESS the meeting is ONLY taking place in person, AND the community can physically access each site of the meeting.[6]
That said, a library board is certainly welcome to broadcast and archive its in-person meetings, and (critically) a board cannot bar attendees from streaming or otherwise broadcasting in-person (or streamed) board meetings, either. Further, if capacity or public health concerns mean setting up to allow remote attendance ensures access to the meeting, there is strong incentive to use the (right now) temporary ability to meet via broadcast/record/transcribe.
So, what does this latest (April 9, 2022) change mean?
Right now,[7] if a board meeting is not being broadcast/recorded/transcribed, any remote location from which a board member is attending the meeting is a de facto additional site of the meeting...so the location must be disclosed in the notice for the meeting and the public must be able to attend the meeting at that remote site.
But it looks like this latest change (April 9, 2022) will somewhat change that. So expect (much) more commentary on this...both from me, and others.[8]
Now, for those of you scratching your heads and saying "Wait a minute, you mentioned all these changes in 2022, I KNOW they changed the law back in November 2021!" --You're right, they did. That change amended the OML to require that documents to be viewed by the trustees at the meeting be made available (and if possible, posted on the library's web page) at least 24 hours before that meeting.[9]
Thank you to the member for a thoughtful question. As to the legislature and the Governor[10]....we see where all of this is going (a more accessible and greener OML), but a little dinner and dancing might be nice before you change the law again!
Most recent OML changes (as of April 13, 2022).
Section 1. Subdivision (c) of section 103 of the public officers law,
20 as added by chapter 289 of the laws of 2000, is amended to read as
21 follows:
22 (c) A public body [that uses videoconferencing to conduct its meet-
23 ings] shall provide an opportunity for the public to attend, listen and
24 observe [at any site] meetings in at least one physical location at
25 which a member participates.
26 § 2. The public officers law is amended by adding a new section 103-a
27 to read as follows:
28 § 103-a. Videoconferencing by public bodies. 1. For the purposes of
29 this section, "local public body" shall mean a public corporation as
30 defined in section sixty-six of the general construction law, a poli-
31 tical subdivision as defined in section one hundred of the general
32 municipal law or a committee or subcommittee or other similar body of
33 such entity, or any entity for which a quorum is required in order to
34 conduct public business and which consists of two or more members,
35 performing a governmental function for an entity limited in the
36 execution of its official functions to a portion only of the state, or a
37 political subdivision of the state, or for an agency or department ther-
38 eof. For the purposes of this section, a public body shall be as
39 defined in subdivision two of section one hundred two of this article.
40 2. A public body may, in its discretion, use videoconferencing to
41 conduct its meetings pursuant to the requirements of this article
42 provided that a minimum number of members are present to fulfill the
43 public body's quorum requirement in the same physical location or
44 locations where the public can attend and the following criteria are
45 met:
46 (a) the governing board of a county, city, town or village has adopted
47 a local law, or a public body has adopted a resolution, or the senate
48 and assembly have adopted a joint resolution, following a public hear-
49 ing, authorizing the use of videoconferencing:
50 (i) for itself and its committees or subcommittees; or,
51 (ii) specifying that each committee or subcommittee may make its own
52 determination;
53 (iii) provided however, each community board in a city with a popu-
54 lation of one million or more shall make its own determination;
S. 8006--C 248 A. 9006--C
1 (b) the public body has established written procedures governing
2 member and public attendance consistent with this section, and such
3 written procedures shall be conspicuously posted on the public website
4 of the public body;
5 (c) members of the public body shall be physically present at any such
6 meeting unless such member is unable to be physically present at any
7 such meeting location due to extraordinary circumstances, as set forth
8 in the resolution and written procedures adopted pursuant to paragraphs
9 (a) and (b) of this subdivision, including disability, illness, caregiv-
10 ing responsibilities, or any other significant or unexpected factor or
11 event which precludes the member's physical attendance at such meeting;
12 (d) except in the case of executive sessions conducted pursuant to
13 section one hundred five of this article, the public body shall ensure
14 that members of the public body can be heard, seen and identified, while
15 the meeting is being conducted, including but not limited to any
16 motions, proposals, resolutions, and any other matter formally discussed
17 or voted upon;
18 (e) the minutes of the meetings involving videoconferencing shall
19 include which, if any, members participated remotely and shall be avail-
20 able to the public pursuant to section one hundred six of this article;
21 (f) if videoconferencing is used to conduct a meeting, the public
22 notice for the meeting shall inform the public that videoconferencing
23 will be used, where the public can view and/or participate in such meet-
24 ing, where required documents and records will be posted or available,
25 and identify the physical location for the meeting where the public can
26 attend;
27 (g) the public body shall provide that each meeting conducted using
28 videoconferencing shall be recorded and such recordings posted or linked
29 on the public website of the public body within five business days
30 following the meeting, and shall remain so available for a minimum of
31 five years thereafter. Such recordings shall be transcribed upon
32 request;
33 (h) if videoconferencing is used to conduct a meeting, the public body
34 shall provide the opportunity for members of the public to view such
35 meeting via video, and to participate in proceedings via videoconference
36 in real time where public comment or participation is authorized and
37 shall ensure that videoconferencing authorizes the same public partic-
38 ipation or testimony as in person participation or testimony; and
39 (i) a local public body electing to utilize videoconferencing to
40 conduct its meetings must maintain an official website.
41 3. The in person participation requirements of paragraph (c) of subdi-
42 vision two of this section shall not apply during a state disaster emer-
43 gency declared by the governor pursuant to section twenty-eight of the
44 executive law, or a local state of emergency proclaimed by the chief
45 executive of a county, city, village or town pursuant to section twen-
46 ty-four of the executive law, if the public body determines that the
47 circumstances necessitating the emergency declaration would affect or
48 impair the ability of the public body to hold an in person meeting.
49 4. No later than January first, two thousand twenty-four, the commit-
50 tee on open government, created by paragraph (a) of subdivision one of
51 section eighty-nine of this chapter, shall issue a report to the gover-
52 nor, the temporary president of the senate, the speaker of the assembly,
53 the chair of the senate standing committee on local government, the
54 chair of the senate standing committee on investigations and government
55 operations, the chair of the assembly standing committee on local
56 governments, and the chair of the assembly standing committee on govern-
S. 8006--C 249 A. 9006--C
1 mental operations concerning the application and implementation of such
2 law and any further recommendations governing the use of videoconferenc-
3 ing by public bodies to conduct meetings pursuant to this section.
4 5. Open meetings of any public body that are broadcast or that use
5 videoconferencing shall utilize technology to permit access by members
6 of the public with disabilities consistent with the 1990 Americans with
7 Disabilities Act (ADA), as amended, and corresponding guidelines. For
8 the purposes of this section, "disability" shall have the meaning
9 defined in section two hundred ninety-two of the executive law.
10 § 3. Notwithstanding the provisions of article 7 of the public offi-
11 cers law to the contrary, for sixty days after the effective date of
12 this act any public body shall be authorized to meet and take such
13 action authorized by law without permitting in public-in-person access
14 to meetings and authorize such meetings to be held remotely by confer-
15 ence call or similar service, provided that the public has the ability
16 to view or listen to such proceeding and that such meetings are recorded
17 and later transcribed.
18 § 4. This act shall take effect immediately and shall expire and be
19 deemed repealed July 1, 2024.
[1] This requirement comes with one modification: " ...notwithstanding the provisions of subdivision one of section ninety-nine of the public officers law, public notice of the time and place of a meeting scheduled at least two weeks prior thereto shall be given to the public and news media at least one week before such meeting."
[2] It happens. This is why a multi-step review process is a valuable thing. Many thanks to Rebecca Darling in Ballston for her input!
[3] This time, on April 9, 2022. The complete notice I have pasted above is posted at https://opengovernment.ny.gov/system/files/documents/2022/04/oml-videoconferencing-amendments-041122.pdf.
[4] Ironically, all the fuss and changes did not change my original answer...just the context I was including.
[5] Chapter 1 of the Laws of 2022.
[6] The OML, before the pandemic, allowed members to attend via teleconference ONLY if their location became an additional site of the meeting, and the public could attend there.
[7] April 13, 2022.
[8] In fact, I'll be doing a training on this for NYLA on Tuesday May 17th, in Albany. For more info, see https://www.nyla.org/spring-on-the-hill-an-in-person-nyla-advocacy-event/
[9] For more on this, see "Ask the Lawyer" https://wnylrc.org/raq/availability-open-meeting-documents.
[10] The Governor is from my hometown. She's a hero to many in Buffalo, so I say this with respectful frustration.
Tag:
Board of Trustees, Broadcasting, Open Meetings Law, Transcription
