Submission Date:
Question:
I just read your excellent answer about posting documents per the OML changes in advance of meetings.
I think you are right on target.
My concern is to ask you to add to your questions for the COOG the following: Do working documents being shaped and edited at committee meetings need to be posted in advance of the committee meeting?
The Committee meeting is an open meeting. Let's say the policy committee is going to discuss a draft revision to a policy. Must we really post the draft revision prior to the meeting? The way our board works, the draft is likely revised several times over three or four policy committee meetings before it becomes part of a board packet for a full board meeting. My "gut" tells me that complying at that level would be overkill. A similar situation would be draft versions of a budget.
I think the public has an opportunity to see the documents in question before they are finalized at a full board meeting, so my instinct is that working documents would not need to be posted in advance. But that's not what a strict reading of the law itself and your posting tells me.
So, I am torn and would love clarification.
Lastly, I just want to compliment you on this service that you are providing. it is really great.
Answer:
Thank you very much for your kind words! And for submitting this question.
For "Ask the Lawyer" readers who don't follow the State's "Open Meetings Law" (the “OML”) with regularity, the new rules that the member is referring to are the revised Section 103(e) of the OML. The "Ask the Lawyer" that the member refers to is "Availability of Open Meeting Documents".
In that RAQ, we discussed the extent of a library board’s new obligation to ensure that certain materials used during open portions of trustee meetings be made available at least 24 hours in advance...and how, if a library routinely uses its website, those advance copies should be posted on it.
Given the new requirements, Tim's question is a practical one: "Do working documents being shaped and edited at committee meetings need to be posted in advance of the committee meeting?" In other words, if the document is in flux, and subject to change even during the meeting, must a copy be provided in advance?
In considering the answer, I of course checked the law and the latest commentary from New York's "Committee on Open Government" (the "COOG"), which is the arbiter of all things OML. However, since Tim mentioned checking in with his gut, I also checked in with mine.
To do that, I pictured myself as the attendee at a meeting of my city's[1] common council. I envisioned them discussing a policy on the agenda: the formation of a police advisory committee.[2] I then pictured myself checking the meeting packet that was put on the City's web site 24 hours prior to the public meeting, to see if a copy of the policy is in the packet.
Here are five scenarios of what happens:
Scenario 1: I check the packet: there it is! As the committee members discuss the proposed policy, I am able to meaningfully link their commentary to the written document.
Scenario 2: I check the packet: there it is! But then, the Chair of the meeting says "Before we begin, I would like to add that this morning I received a proposed new version of the policy for us to consider. The new version adds a paragraph to the version that is in your packet. That version was emailed to council members this morning." As the committee members begin to discuss the proposed policy, and the new paragraph, I am able to meaningfully link their commentary to the written document--except for the new paragraph.
Scenario 3: I check the packet: there it is! But then, the Chair of the meeting says "Before we begin, I would like to add that this morning I received a proposed new version of the policy for us to consider. The new version adds a paragraph to the version that is in your packet. That version was emailed to council members this morning, and I am going to ask the clerk to place a version in the video feed [in a way public attendees can see] as a courtesy." As the committee members begin to discuss the proposed policy, and the new paragraph, I am able to meaningfully link their commentary to the written document--even the new paragraph.
Scenario 4: I check the packet: there it is! Twice? Hmmm. As the agenda item is called, the Chair of the meeting says "Before we begin, I would like to clarify that we have two versions in the meeting packet because two versions have been submitted for review and consideration at this meeting." As the committee members begin to discuss the proposed policy, and the two versions, I am able to meaningfully hear their commentary on the precise wording as they discuss intent, concerns, and possible revisions, although I have to toggle between versions to keep up.
Scenario 5: I check the packet: it's NOT there! When the committee reaches that agenda item, the Chair of the meeting says "Because this policy is under review in various offices, who may submit changes before our next meeting, and there are a few versions under discussion, we haven't posted any version yet." As the committee members begin to discuss the proposed policy, and the different wording, I am unable to meaningfully connect their commentary to the writing they have based it on.
Checking in with my gut: in either "Scenario 2" or "Scenario 5," I might be irritated to the point where my gut might review the law to see--has the council followed the law?
And when my gut checks with the law, I see this commentary from the COOG[3]:
So with that, I answer the question ""Do working documents being shaped and edited at committee meetings need to be posted in advance of the committee meeting?" as follows:
Even if a policy is in draft form, or if multiple versions are under review, if it is on the agenda of a public meeting for discussion, the version or versions under review should be included in the meeting packet, to allow for meaningful public access to the materials.[4]
That said, recommendations, opinions, or similar materials regarding such policies under development do not have to be shared, and revisions not ready in time for posting (even if discussed at the meeting) do not have to be made available/posted in advance.
Thank you for a subtle and thoughtful question!
[1] The beautiful, if somewhat bedraggled by an industrial past, Buffalo NY.
[2] This was not a huge stretch, as that topic actually is under consideration by Buffalo as of April 2022.
[3] Full text available at https://opengovernment.ny.gov/system/files/documents/2021/11/disclosure-of-records-scheduled-for-discussion-at-open-meetings-112221.pdf as of April 6, 2022.
[4] Although the law does not require it, when doing so, I strongly advise that the version include a header or some type of other indicia showing that it is a draft copy for review only, and the version date (of course, archivists and clerks?).
Tag:
Board of Trustees, Open Meetings Law, Policy, Privacy, Public Records
