Opinion 99 - 8


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

FEES - Imposition of (for a subscription to minutes of board meetings)

LOCAL LAWS - Fees (imposition of by town for subscription to minutes of board meetings)

PUBLIC MEETINGS - Minutes (imposition of fees by town for subscription to minutes of board meetings)

TOWNS - Fees (imposition of a fee for subscription to minutes of board meetings)

TOWN LAW, §§30(1), 63, 64(11-b), 116(13); MUNICIPAL HOME RULE LAW, §10(1)(ii)(a)(9-a); PUBLIC OFFICERS LAW, §106(3): A town is authorized to adopt a local law that establishes a flat fee for an annual subscription to copies of the minutes of the town board meetings and provides for the mailing of the copies of the minutes to those who have paid the fee. The amount of the fee must be reasonably related to the town's reproduction and mailing costs. The provision of the subscription service does not obviate the need to respond to individual requests, submitted pursuant to the Freedom of Information Law, for copies of the minutes.

This is in response to your inquiry concerning the authority for the town to distribute copies of the minutes of the town board meetings to individuals on a subscription basis. You indicate that the town has been providing copies of the minutes of the town board meetings upon request and charging the fee of $.25 per page copied, as authorized under the Freedom of Information Law (Public Officers Law, Article 6; hereinafter "FOIL"). You ask whether the town is authorized to establish a procedure pursuant to which the town board sets a flat fee for an annual subscription and mails copies of the minutes of each town board meeting to those who have paid the fee.

Under section 30(1) of the Town Law, the town clerk is required to attend all meetings of the town board, act as clerk thereof, and "keep a complete and accurate record of the proceedings of each meeting, and of all propositions adopted pursuant to this chapter." Section 63 of the Town Law provides that "the names of the members present and their votes shall be entered into the minutes." In addition, section 106(1) of the Public Officers Law requires that minutes must be taken at all open meetings of a public body and that such minutes "shall consist of a record or summary of all motions, propositions, resolutions and any other matter formally voted upon and the vote thereon." Apart from these requirements and certain other statutes that require specific information or actions of the town board to be recorded in the minutes (see also, e.g., Town Law, §§133, 236, 264, 265; General Municipal Law, §801), it is within the discretion of the town board to determine, by its rules of procedure, the form and content of the minutes (see 1982 Opns St Comp No. 82-181, p 233; 1981 Opns St Comp No. 81-301, p 325).

In relation to the distribution of the minutes of town board meetings, section 106(3) of the Public Officers Law requires that the minutes of all open meetings of a public body "shall be available to the public in accordance with the provisions of the freedom of information law [FOIL] within two weeks from the date of such meeting. . . ." As you are aware, FOIL permits the imposition of a fee not to exceed twenty-five cents per photocopy not in excess of nine inches by fourteen inches (Public Officers Law, §87[1][b][iii]). The town board is also authorized to publish the minutes of its proceedings in the official newspaper, or if no official newspaper has been designated, in any newspaper having general circulation in the town (Town Law, §64[11-b]). Finally, section 116(13) of the Town Law permits towns to publish and distribute, at town expense, reports "relative to the fiscal affairs, official acts, programs and meetings of boards, commissions, departments and other agencies" of the town. No provision is made, however, in the Town Law or the Public Officers Law for the establishment of the type of subscription service you describe.

n the absence of State legislative authority, it remains to be determined whether the town may initiate such a subscription service pursuant to its home rule authority. Municipal Home Rule Law, §10(1)(i) authorizes local governments to adopt local laws, not inconsistent with any general law or the Constitution, relating to their property, affairs or government. In addition, except to the extent restricted by the State Legislature, local governments may adopt local laws, not inconsistent with general laws and the Constitution, relating to certain enumerated subjects, whether or not they relate to property, affairs or government (Municipal Home Rule Law, §10[1][ii]). Among the enumerated subjects is the "[f]ixing, levy, collection and administration of local government rentals, charges, rates or fees . . . " (Municipal Home Rule Law, §10[1][ii][a][9-a]). Also relevant to the analysis of the town's home rule authority is the doctrine of preemption, a fundamental limitation on home rule under which the State Legislature's intent, whether express or implied, to preempt an entire field is deemed to preclude the adoption of local laws regulating the same subject matter (see e.g., 1998 Opns St Comp No 98-14, p 35 and citations therein).

Here we find no general laws or provisions of the Constitution that would preclude the adoption of a local law establishing a subscription service for copies of the minutes of town board meetings (cf. 1981 Opns St Comp No. 82-120, p 149, in which we concluded that provisions of the Real Property Tax Law precluded a local law that would pass the cost of mailing tax receipts on to the taxpayers). Similarly, we find no indication, express or implied, that the State Legislature intended to preclude the adoption of local laws in this area. In particular, we note that the provisions of FOIL govern access to existing records and the fees that may be charged for copies thereof, rather than a subscription service for records yet to be created, as contemplated here.(1) Consequently, it is our view that section 10(1)(ii)(a)(9-a) of the Municipal Home Rule Law would authorize the adoption of a local law imposing a flat fee for an annual subscription to copies of the minutes of town board meetings.

With regard to the practical aspects of establishing the flat fee for the annual subscription, we note that the amount of the fee must be reasonably related to the town's cost of reproducing and mailing the minutes of the town board meetings and cannot be used as means of generating excess revenues that would be used for general town purposes (see 1992 Opns St Comp No. 92-40, p 103; 1990 Opns St Comp No. 90-39, p 88). Further, the town must remain cognizant of the fact that its provision of the subscription service does not obviate the need to continue to respond to individual requests for copies of the minutes of the town board meetings submitted pursuant to FOIL.

In light of the foregoing, it is our opinion that a town is authorized to adopt a local law that establishes a flat fee for an annual subscription to copies of the minutes of the town board meetings and provides for the mailing of the copies of the minutes to those who have paid the fee. The amount of the fee must be reasonably related to the town's reproduction and mailing costs.

December 3, 1999
F. Gerald Mackin, Town Supervisor
Town of Hancock

1. This conclusion appears to be consistent with an advisory opinion rendered by the Committee on Open Government, pursuant to section 89(1)(b)(i), (ii) of the Public Officers Law, in which the Committee on Open Government concluded that a city would not be bound by the provisions of the Freedom of Information Law if it chose to provide updates to the city code on an subscription basis (see Comm on Open Gov't FOIL-AO-10073).