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Questions & Answers

Real questions from New Yorkers, answered by the coalition. Search first, your question may already be here.

Minutes and Agendas

Did Our Town Board Violate Open Meetings Law By Not Posting Audit Documentation Prior To A Meeting?

If the town board members received a copy of the audit that was discussed prior to the meeting then it should have been posted online 24 hours prior for the public to see as required by the Open Meetings Law. It is a disservice to the public for town board members to be discussing a document that the public has not been able to review.

It is unfortunate that not a single board member took the time to respond to your email.

Looking at the town board agenda I see several resolutions listed, for discussion those should have been posted online 24 hours prior for the public to see as well.

Feel free to share this response with your town board members and local news media. It is important to educate elected officials and sometimes the news media can bring attention to these issues.

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Executive Sessions

Was This Executive Session Carried Out Properly?

The agenda language you provided is OK, as it is simply informing the public that an executive session motion may occur.

An executive session motion “regarding litigation” is not sufficient under the Open Meetings Law. The name of the lawsuit or litigation being discussed should be stated in the motion.
If the board is simply receiving an update regarding the status of a lawsuit that can and should occur in public.

An executive session motion regarding the “employment history of a particular person” is minimally acceptable under the law. It still leaves the public in the dark, and it would be helpful to at least let the public know that this is in regard to hiring someone, disciplining someone, promoting someone etc.

The executive session motion for “discussion on open seat candidate” is improper under the Open Meetings Law. It is not appropriate to discuss the filling of an elected board position in an executive session.
Filling a public position is not the same as discussing the hiring of other positions.

These are great questions that you have asked.

Attached is a report we did regarding executive sessions, which you may find helpful, along with opinions by the NY Committee on Open Government.

Also attached is a copy of a letter that we sent out to public boards that have discussed filling a vacant board position in an executive session.

New York State Committee on Open Government Opinion

Ulysses Town Board Vacancy Letter

Report: School Boards Across New York State Hold Improper Executive Sessions

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Who can speak at a village board hearing?

During a Village meeting a member of our village board stated that” even though you pay taxes to the village unless you vote in the village you are not allowed to attend public hearings, village board meeting,nor speak during village board meetings.Ia thia true.

If not what recourse do we have?

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Information On Property Ownership By Elected Officials Redacted In FOIL

I have a FOIL issue I’d like your take on. The Albany County Legislature recently narrowly defeated a bill to provide funding for attorney representation for low income tenants facing eviction. I believe funding has already been made available for legal aid to provide attorneys to tenants in these circumstances.

It is common knowledge that some county legislators are also landlords. In general, landlords oppose tenants having legal counsel in eviction proceedings, for obvious reasons. So it would be interesting for the public to know who owns rental property in the county, how much they own, to determine if there might be any ethical issue with any legislator’s vote.

I submitted a FOIL request for all the County legislators’ recently filed ethics forms through the County Clerk’s office and eventually received the responses. In each and every case, the answer to the question of whether the legislator or family member had a financial interest in real property in the county was redacted.

It would seem that the public has a legitimate interest in this information, and it would seem that neither the County nor a legislator would have a legitimate reason in restricting release of this information. Such information would be available if a search of the County’s real property records was made, which would be time-consuming and arduous.

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Can A Town Barr Selective People From Speaking At Public Meetings?

Not sure if you heard, but the Niagara Falls Council Chairman started last night’s meeting with a statement telling everyone that public speaking is a privilege, not a right.

In a statement he issued, he said two people who have been complaining about the city’s contract with a Grand Island animal shelter are barred from public speaking at meetings until after June 4, essentially suspended. They can come back after that. If they act up again, he said the city will ban them from speaking for the remainder of the year.

Can he and/or the city do that? Anything in law or opinion that speaks to something like this?

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Minutes and Agendas

Do Attachments Need To Be Included In Online Agendas For Public Meetings?

I previously provided you a response to me from the District Clerk of the (school district name omitted) regarding her rationale that attachments need not be included on the agenda posted to the website for any agenda items that are not “scheduled for discussion”. You kindly gave me permission to forward your response to the Clerk. Nevertheless, the practice of omitting many attachments continued.

Recently we wrote the District Clerk again and asked for any interpretation of the school attorney that supports her exclusions re attachments. She wrote:

“Mrs. (omitted),

Per consult with our legal counsel:
The Open Meetings Law does not require the Board to post attachments to every agenda item. Section 103(e) of the Open Meetings Law pertains to documents “which are scheduled to be the subject of discussion by a public body during an open meeting.” If the Board does not anticipate that certain documents will be the subject of discussion during the meeting, Section 103(e) does not require that they be posted.

Here is an opinion from the Committee on Open Government which confirms this :
https://docsopengovernment.dos.ny.gov/coog/otext/o5341.htm
This opinion involves Board Meeting minutes and confirms that when they are not scheduled to be discussed during the meeting, “there would be no obligation to post them online prior to a meeting.” This same analysis would apply to any document that is not scheduled for discussion during the meeting.

Thank you.”

I am making two assumptions about her response:
1) I believe the link cannot be accessed because it is not available on the OML website since it is prior to 1993 and no longer consistent with the 2021 amended law.

2) I also believe that their claim re public agenda items “not scheduled for discussion” violates the parliamentary procedures per Robert’s Rules that they adopt Policy #103.01 re Public Meetings. Unfortunately, their approach, of which they speak with pride, is that they consistently vote unanimously on all public resolutions. How would they know they don’t “anticipate discussion” of a particular item unless they previously reviewed the items together away from the board table? Further, all public agenda items are subject to parliamentary procedure that allows any board member to discuss a resolution once it is moved and seconded.

Are these two assumptions correct?

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Can a Mayor Gag City Hall Workers From Talking To The Media?

I received a message from the Mayor of (omitted) directed to all City Hall employees to not speak to The Media and demands all questions be directed to his office.

My question is: does the mayor have the authority to do this? Many of these workers are civil servants and not just employees. Many people have told me they believe this is illegal, but I’d be interested in what you have to say.

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Why Are There No Cameras In The Court Room During The Donald Trump Trial?

I woke up super early (4:30am!) yesterday and went to the Manhattan Criminal Courthouse to watch the Donald Trump trial. It was a fascinating day.

I did find it troubling though that even though the case is officially, “THE PEOPLE OF THE STATE OF NEW YORK against DONALD J. TRUMP,” as the case is captioned, only six regular “people” were allowed in the courtroom, with the rest of the seats taken by the media.

While reporters are doing a generally commendable job covering the trial, seeing the actual trial was a completely different experience than reading about it or watching talking heads discuss the trial on TV, giving perspective of the impact and credibility of both lawyers and witnesses.

New York law requires that courts are open to “every” citizen. “The sittings of every court within this state shall be public, and every citizen may freely attend the same.” New York Consolidated Laws, Judiciary Law – JUD § 4. Allowing a token six people who have to queue in the sidewalk outside the courthouse in the early morning hours to have a chance of getting one of a very limited number of seats doesn’t seem to be in compliance with this law.

I know you have sponsored legislation to give judges discretion to permit cameras in their courtrooms, but this would be too late for this trial.

Especially as this case is being carried out in the name of “the people,” and given the existing law that trials are open to “every” citizen, is there any more that can be done to provide real public access to the remainder of this trial?

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Are There FOIL Exemptions Of Police Communications That Affect Security During Trials?

I am hoping you can advise on exemptions under FOIL. We are hoping to send requests to the NYPD (New York Police Department) seeking communications with third parties (private parties) related to security provided for the high profile trial proceedings in NYC. We are wondering whether and to what extent any of the below exemptions would apply (or any considerations about which we should be aware).

i. interfere with law enforcement investigations or judicial proceedings;
ii. deprive a person of a right to a fair trial or impartial adjudication;
iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or
iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures;
(f) if disclosed could endanger the life or safety of any person;

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How do I file an Article 78 ‘Pro Se’ Lawsuit If my FOIL request was denied?

I have until Thursday to file an Article 78 on a FOIL Appeal denial in Rockland County by the Town of Ramapo.
It’s a very straightforward legal issue and I am thinking of pursuing it ‘pro se’ because I am so incensed.

It was a request for a spreadsheet which I had personally seen on the prior director of planning ipad which we discussed. I asked for it and was denied based on the materials being intra-agency and being draft. Based on COOG opinions, I strongly believe the records should have been released. I am wondering if your attorneys may have some examples of a petition that I could reference. I am thinking that the main request is to get the court to order the materials released to the judge to review for a court determination.

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Cheektowaga Police Not Releasing Bodycam Footage

Not sure if you have seen or heard about the incident with Cheektowaga police aggressively arresting a teenager for a petty theft, but I requested the body cam footage.

There is cell phone video of the incident but it’s not from the viewpoint of officers.

They denied it because it would interfere with judicial proceedings. I found that reason odd considering cell phone video already exists.

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Can A Village Board Vote Via Email?

Hello, my name is (redacted) and I am a reporter with the Niagara Gazette. I wanted to get this organization’s opinion on something.

On the agenda for the March 14th meeting of the Village of Youngstown, there is an item stating that the board extended an existing short term rental moratorium by an email vote on 2/29/24, which extended it to Aug. 10.

I was unable to attend that meeting due to being out of town. I wanted to know if such a vote like that is legal and, if so, it can be used that way.

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Can I FOIL Information From A Non-Profit?

Hi Paul,

We covered an incident at the emergency homeless shelter here in Ithaca in which a shelter client was put in a chokehold by an employee. The non-profit the county has contracted to operate the shelter, St. John’s Community Services, submitted two reports on the incident: one to the county and one to the state. St. John’s will not release the reports to me directly, so I am working to request them.

The state OTDA has a specific form for such reports: https://otda.ny.gov/programs/housing/forms.asp

Since it’s very likely that they’ll reject or at least redact this records request, I was wondering if you had any previous cases I could cite to improve my chances of getting more complete responsive documents.

I am in contact with and working to get written permission from the shelter client who was involved in the incident, but don’t have that just yet.

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State Agencies Stonewalling FOIL Requests On Tesla Factory in Buffalo

This is (redacted) with Investigative Post in Buffalo – I hope you’re doing well!

I’m reaching out because I’m publishing a story this week about more stonewalling by state agencies for basic information about the Tesla factory in Buffalo. I’m hoping you might be able to comment for the piece.

Here’s the backstory: Last January (2023) I published this story about problems with Tesla’s Solar Roof, the product it, at one point, dedicated its Buffalo factory to. The Solar Roof is a series of interlocking glass shingles that act as individual solar cells. My story detailed how Tesla had so many issues manufacturing it that it eventually reduced its production and began using the factory for other purposes. My story also noted the lack of “spin off” development around the factory and pointed out that a state agency, Fort Schuyler Management Corporation, owned some 100 acres of land surrounding the factory, supposedly for that “spin off” development.

So, I wanted to know what was being planned for that property.

On March 8, 2023 I filed a FOIL request with Ft. Schuyler asking for emails, letters and other documents on the property it owned. More than a year later, Ft. Schuyler is still processing my request. After I appealed an effective denial after several months of delays, the agency began releasing documents in batches. One batch revealed the existence of a state spending account Tesla is allowed to use for various renovations.

Another batch revealed another fact: Tesla had installed solar panels on the roof of the factory. Given my past reporting on the struggles of Tesla’s solar operations, I was curious if these were Tesla panels, or another company’s panels. As I’ve sought an answer to that very basic question, I’ve been stone walled at every turn. Tesla won’t say. Fort Schuyler won’t say.

Finally, in January, I FOILed again. Here’s the language of the request and the response:

I am seeking the name of the manufacturer of the solar panels installed on the roof of the Buffalo Riverbend Tesla factory (1339 South Park Avenue), the name of the vendor who sold the solar panels and the name of the company that installed the solar panels. To that end, I request records that list the names of the solar panel manufacturer, the vendor and the installer. These records may include but are not limited to: Purchase orders, invoices, receipts, memos, inspection documents, legal agreements or waivers, lease documents or the file “Program Timeline Action Items.xlsm.” The panels were purchased circa 2020 and installed circa 2021.
In response to your request, we can confirm that Tesla Energy Operations, Inc. installed the panels on the roof of 1339 South Park Avenue. Your request for information concerning the manufacturer and supplier of the panels is denied. The records you have requested constitute a trade secret of Tesla and if disclosed would cause substantial injury to the competitive position of Tesla as provided in § 87 (2)(d) of the Public Officers Law. FSMC was not involved in contracting for or funding the purchase or installation of solar panels placed on the roof of the Tesla building. Tesla has numerous facilities and operations located throughout the world, and does business with numerous suppliers of similar products and services. It maintains strict confidentiality concerning the identify of its suppliers and vendors because disclosure of the identify of a supplier could have a negative impact on its ability to obtain competitive terms and prices from other suppliers.

This, of course, is part of a pattern. My editor Jim Heaney was previously stonewalled by the state over factory records, which eventually kicked off the Buffalo Billion scandal.

Here’s my question: What do you make of all this? Is this type of stonewalling typical of New York? Is this particularly egregious, in part because the state built this factory with $969 million in taxpayer money?

What should the public make of all this? It seems to me that the state-owned factory is in part a state secret. I’m wondering if it’s normal to be this secretive about something taxpayers paid for?

While it may not be the biggest deal who made the solar panels, this seems to represent a pattern of secrecy. I’m wondering if you agree with that?

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Is it illegal for town to not allow public comment?

Unfortunately, New York’s Open Meetings Law does not require a public comment period at a town board meeting. The New York Coalition For Open Government is seeking to change the law to make public comments mandatory.

Whether they want to allow public comments at their meetings is up to each town board. That being said, if public comments were allowed previously in order to take them away, there should have been a resolution filed to change the existing policy with a public discussion and vote on the issue. The question this raises is when was eliminating public comments discussed, who made the decision to eliminate them, and when?

You can ask the town board members in an email to explain why public comments have been removed and who made the decision to do so? This is a great issue for you to raise and cause a ruckus about as everyone understands the importance in a Democracy of the right to speak to your elected officials and to be heard. Start a petition drive to bring back public comments and get a group of people to attend a meeting with their mouths muzzled as a protest. Perhaps you can interest a local news reporter in doing an article about this issue?

I also looked at the town website, and they are not posting meeting documents online at least 24 hours prior to the meeting as required by the Open Meetings Law. Posting a one-page agenda with meeting topics is not sufficient. The public has the right to see the resolutions the town board will be voting on and all other meeting documents prior to the meeting.

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Can Our Town Disallow Public Comment During Public Meetings?

Glad to hear that you are actively seeking to improve transparency in the town of (omitted).

Unfortunately, New York’s Open Meetings Law does not require that there be a public comment period at a town board meeting. The New York Coalition For Open Government is seeking to change the law to make public comments mandatory.

It is up to each town board whether they want to allow public comments at their meetings or not. That being said, if public comments were allowed previously in order to take them away, there should have been a resolution filed to change the existing policy with a public discussion and vote on the issue. The question this raises is when was eliminating public comments discussed, who made the decision to eliminate them, and when?

You can ask the town board members in an email to explain why public comments have been removed and who made the decision to do so? This is a great issue for you to raise and cause a ruckus about, as everyone understands the importance in a Democracy of the right to speak to your elected officials and to be heard. Start a petition drive to bring back public comments and get a group of people to show up at a meeting with their mouths muzzled as a protest. Perhaps you can interest a local news reporter in doing an article about this issue?

I also looked at the town website, and they are not posting meeting documents online at least 24 hours prior to the meeting as required by the Open Meetings Law. Posting a one-page agenda with meeting topics is not sufficient. The public has the right to see the resolutions the town board will be voting on and all other meeting documents prior to the meeting.

Keep up the fight, and I hope this information helps.

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Minutes and Agendas

Is a public authority required to post comments that occurred during a public discussion?

If a public authority holds a meeting and the public is allowed to speak, is the public authority required to post the public discussion along with its meeting minutes?

Can it publish its official business and leave out of the published minutes, comments made by the public?

Thank you.

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Minutes and Agendas

What Information Needs To Be Included In Board Documents?

Is there any reason why Board Minutes (for a NY town) cannot contain extras to help get things accomplished, such as Action Items (would have name, task, estimated completion date as a minimum).

We have a Who’s On First shtick at Board meetings here in Elma that’s driving us up the wall.

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Town Board Not Following Open Meeting Law Rules

I am seeking some guidance regarding an ongoing issue I am having with the Town of Theresa.

Last year, I began to notice that the Town was not posting its board meeting minutes in a timely manner and required by the Open Meetings Law (OML). For example, by November of 2023, the minutes from May 2023 onward had not been posted. I have screenshots to support my claims. I brought this to the attention of the Town Board in October 2023 and was met with hostility and contempt for the OML by the Town Clerk. The following month, I requested to address the Town Board and read/submitted a formal complaint regarding the lack of compliance with the OML. I also provided citations of where the law could be found and the posting requirements for the Town of Theresa (Note: The Town has a regularly maintained website and access to high-speed internet).

It wasn’t until approximately December 11th, 2023 that the remaining outstanding minutes (May-Nov) were posted on the website. On December 13th, 2023, I brought my video camera to the Town Board meeting to film the public meeting. As I was setting up my camera, the Town Supervisor, Steve Marcinkowski, asked me if I was allowed to do that. I said that I was (Public Officers Law, Art 7, Sec 103 (d)(1)). He didn’t believe me and demanded that I look up the law and prove to him that I was allowed to record the meeting. I informed the Town Supervisor that the burden was on him to prove that I was violating the law, and that I was not obligated to prove my rights. He threatened to cancel the public meeting and disappeared into his office for about 10 minutes to attempt to call the Town’s attorney. I can elaborate on how things transpired afterward if needed, but the public meeting did move forward.

The Town held another public quorum on December 28th, 2023, but due to my recovering from COVID, I was unable to attend. To date, those minutes have not been posted on the Town website.

The Town held its next board meeting on January 17th, 2024. As I was setting up my camera for this meeting, our county legislator was in attendance and asked why I recorded the meetings. I simply stated that my intentions were to record the meetings and post on Youtube so that people who could not attend would have the opportunity to observe what was discussed. The Town Supervisor overheard this and asked if I was live-streaming and if I was allowed to post the videos on Youtube. He also stated that he discussed this “extensively” with the town’s attorney and said that they will be watching what I am doing with the videos very closely and that if it can be construed as harassment, then the town will pursue civil and criminal charges against me. I told him that I had no intention of breaking the law, at which point, he repeated himself in saying that they will be watching what I do with the video very closely. I perceived this as a legal threat.

During the January 17th meeting, I again asked to address the board. As we now have a new Town Clerk and a new member to the town board, I briefly discussed the issues over the past several months and the requirements of the law. A board member stated that the minutes do not get approved until the following meeting, but I explained to them that they still have to be posted, but in draft status until formal approval. The Town Supervisor, on camera, stated that at this time it is not a priority for the Town to post the minutes within the legal requirements and that the Town is too busy.

I am asking for guidance from the New York Coalition for Open Government regarding this issue. I would like to post the videos I have made of the Town of Theresa Board Meetings on Youtube so that members of the public who are unable to attend may keep themselves informed and that our elected officials are held accountable for the statements and decisions they make. The Town Supervisor has made it clear that the Town of Theresa does not intend to abide by the OML. As of the writing of this email, the Town of Theresa Board meeting minutes have still not been posted for December 28th, 2023, and January 17th, 2024. The next Town Board meeting is on February 14th, 2024.

Ideally, I would like to livestream the Town Board meetings so that I may webcast and upload to Youtube all at once. This would ensure the highest degree of transparency and accessibility to fellow town residents. I can almost guarantee that this will be met with hostility and that Town Supervisor Steve Marcinkowski will make good on his threat of legal action against me. I would welcome any guidance and/or support your organization could offer in this matter.

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Can I FOIL Public Employee Union Grievances?

I know you’ve helped us in the past on general public information inquiries when it comes to the media.

I have a question regarding union grievances filed against a municipality.

I’ve heard that Jamestown’s police and fire departments have filed grievances against the city. My question is whether these documents are covered under FOIL rules and, if so, would it be to the city or another agency like PERB (Public Employment Relations Board)?

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