Amendments to the New York State Open Meetings Law May Affect Agency Obligations to Produce Records

Land Use

 

In February, Section 103(e) of Article 7 of the New York State Public Officers Law (“Open Meetings Law”) became effective.  The new provisions of Section 103(e) provide:

“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 amendments 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 as determined by the agency or department, prior to or at the meeting during which the records will 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 as determined by the agency or department prior to that meeting.  An agency may, but shall not be required to, expend additional moneys to implement the provisions of this subdivision.”

According to the New York State Committee on Open Government, “the purpose of the legislation is simple: those interested in the work of public bodies should have the ability, within reasonable limitations, to see the records scheduled to be discussed during open meetings prior to the meetings.”

The operative and most interesting phrase used by the New York State Legislature requires that the agency shall comply with the new requirements of Section 103(e) “to the extent practicable”.  According to the New York State Committee on Open Government, the rational for the phrase “to the extent practicable” is as follows:

“The phrase quoted twice in section 103(e), ‘to the extent practicable as determined by the agency’, is intended to ensure that the amendment is implemented reasonably and without undue burden or cost to an agency.  Many units of government are small and lack information technology resources or the knowledge or expertise to implement the new provision.  If that is so, and they do not have the ability to give effect to the amendment with reasonable effort, they are not required to do so.  In recognition of fiscal realities, the new provision specifies that an agency ‘may, but shall not be required to, expend additional moneys to implement the provisions of this subdivision.’”

It has yet to be determined what impact this will have on agencies and municipal boards during the course of regular business.  In any event, for compliance purposes, during a regular meeting, agencies, including municipal boards, may consider maintaining extra copies of all draft or proposed resolutions, laws, rules, regulations, policies, or any amendments that are scheduled to be the subject of discussion.

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