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A recent revision of the New York State Open Meetings Law (OML) appears to be a workable requirement that serves the public interest. While new requirements have only been in effect a couple of months, initial concerns that the revised law would be a burden on school districts have abated.

The law, which took effect on Feb. 2, requires the online posting or advanced public access to materials used in open meetings, such as school board meetings, prior to the meeting taking place. The law states that there should be disclosure on items “scheduled to be the subject of discussion,” which initially prompted many calls to the New York State Committee on Open Government, a unit within the Department of State that advises policymakers, news media and the public on laws involving freedom of information, open meetings, and personal privacy protection. 

Robert Freeman, executive director of the Committee on Open Government, has called attention to the fact that the law states disclosure should be “to the extent practicable as determined by the agency or the department.”  This verbiage explicitly grants a great deal of discretion to school boards and other public bodies.

Freeman recently confirmed that the number of calls to his office from school boards and school districts on the implementation of the new OML disclosure provision has subsided tremendously over the past two months as school officials have learned what the law does and does not require.

The law represents an effort to make government more transparent and encourages open access and proactive disclosure by school boards This serves school boards’ interests by helping citizens understand the issues boards are grappling with and promoting greater citizen involvement.

Notably the Legislature included the phrase “to the extent practicable” twice in a new, 168-word subsection (see sidebar). In addition, the statute specifically states that an “agency may, but shall not be required to expend additional moneys” to implement these new disclosure requirements. This language makes it clear that the Legislature recognizes that different districts will have different capabilities to comply and allows for school boards to use their discretion in meeting these new requirements. Although compliance will require some expenditure of staff time and possibly photocopying and miscellaneous expenses, the law says that additional funds are not required to be expended under these provisions and also includes language reminding agencies that they can charge reasonable fees for producing hard copy documents in response to FOIL requests.

The new law does not greatly expand the kinds of documents subject to disclosure. The added provision simply asks districts to be proactive by disclosing what would be considered public documents under Section 87 of the Freedom of Information Law (FOIL), Article 6 of the Public Officers Law. Additional documents subject to disclosure under the new OML provision are only those that are “scheduled to be the subject of discussion” by the board. Such documents are to be made available and posted on the district’s web site, to the extent practicable, prior to the board’s meeting. Thus, the OML amendment expands the FOIL disclosure requirement just to proposed resolutions, laws, rules, regulations, and policies that are scheduled to be the subject of the board’s discussion during the open meeting portion of its session.  Records discussed during an executive session, routine consent items, and inter-agency or intra-agency materials exempt under FOIL do not need to be disclosed under the new provision.

Effective and efficient adherence to the law will depend on a district’s use of existing technology such as websites. Districts that lack websites are, most likely, moving in that direction as part of their overall education technology plans. The new OML provision does not require districts to have websites or purchase any technology. The law simply promotes a proactive effort by districts to expand the use of this existing technology through a strategy that can be applied towards better engaging the public during school board meetings. It may reduce district costs associated with fulfilling FOIL requests.

The amendment to the OML may be a model for effective legislative initiatives that use existing resources and structures, respect and recognize the discretion of school boards, provide possible cost savings, and are supported by expertise and guidance at the state level.

Guidance and information about the revision to the Open Meetings Law are available at the Committee on Open Government’s website, www.dos.state.ny.us/coog.

Members of the New York State Association of School Attorneys represent school boards and BOCES. This article was written by Howard J. Goldsmith, of Counsel, to Harris Beach PLLC. The firm has 12 offices throughout New York State; Goldsmith is based in the Albany office.

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