On October 19, 2021, Governor Hochul signed legislation amending the Open Meetings Law (NYS Public Officers Law, Article 7). This legislation amends Public Officers Law Section 103(e) to require documents that are going to be discussed at a public meeting to be made available upon request or posted on the local government’s website at least 24 hours prior to the meeting. The amendment will take effect on November 18, 2021. The announcement of the new legislation may be accessed here and the text of the new legislation can be found here.
The Open Meetings Law has long required that agency records that would be available under the Freedom of Information Law (FOIL), as well as any proposed resolutions, laws, rules, regulations, policies, and/or any amendments thereto, that are scheduled to be the subject of discussion at an open meeting, be made publicly available upon request. The law previously required that, to the extent practicable as determined by the agency, such records be available at, or prior to, the meeting. It additionally provided that, to the extent practicable as determined by the agency, those same records be posted on the agency’s website prior to the meeting if the agency utilizes a high-speed internet connection and regularly updates its website.
This amendment will require that the records be made available and, where possible, posted to the agency’s website at least twenty-four (24) hours prior to the meeting at which the records will be discussed. Local governments will need to be diligent to ensure they meet this newly imposed timeline. The amendment does not prohibit a governing board considering “walk-on” agenda items or discussing documents received by the local government on less than 24 hours’ notice. The language of the amended statute retains the phrase “to the extent practicable.” Therefore, in certain circumstances, such as (1) if a board must unexpectedly add a new item to its agenda less than twenty-four (24) hours before a meeting, and (2) a topic is listed on the agenda but the document being discussed, such as a contract, for example, is not available until less than 24 hours, it is our opinion that it can do so without violating the statute. However, any records that are required to be available and posted under the Open Meetings Law that are in the local government’s possession at least twenty-four (24) hours prior to an open meeting where they will be discussed should be made available and also posted to the local government’s website within the newly established timeline. Although not required, best practice is that any document available less than 24 hours be posted or made available at the meeting to the extent possible. A local government that fails to meet the new requirements of Public Officers Law Section 103(e) are subject to the enforcement provisions of Public Officers Law Section 107. Any aggrieved person may enforce the provisions of the Open Meetings Law against the local government by commencing a proceeding pursuant to Article 78 of the Civil Practice Laws and Rules, or an action for declaratory judgement and injunctive relief. If a court determines that the local government failed to comply with the Open Meetings Law, the court may declare the action taken in relation to such violation void. The court may also require the members of the local government participate in training sessions on the requirements of the Open Meetings Law. In any Article 78 proceeding brought pursuant to Section 107, costs and reasonable attorney fees may be awarded by the court, in its discretion, to the successful party.
On October 25, 2021, Governor Hochul signed legislation to amend New York State Town Law Section 30 to requires a version of a Town Clerk’s signboard be posted on the town’s website. This legislation only applies to municipalities that utilize a high-speed internet connection and maintain a regularly and routinely updated website. The text of the legislation is available here. The purpose of this legislation is to increase public knowledge about town actions and events. Most town residents get their information from the internet rather than physically going to town hall to look for any notices posted on a signboard. By creating an online version of the town’s signboard, residents will have quick and easy access to town information, allowing them to be better-informed citizens. A town is not required to maintain an online signboard should the town incur additional costs to do so. This legislation only applies to Towns; there is no similar provision applicable to Cities or Villages.
If you have any questions or concerns regarding this Legal Alert, the New York State Open Meetings Law, or New York Town Law please feel free to contact Nicholas Ward-Willis or any of our attorneys in our Municipal Law department or Education Law department.