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June 27, 1997

 

 

 

Hon. Frank Karl, Supervisor
Hon. John Martino, Councilman
Town of Franklin
P.O. Box 73
Vermontville, NY 12989

The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the information presented in your correspondence.

Dear Supervisor Karl and Councilman Martino:

I have received your letters which are respectively dated June
11 and June 9, concerning issues relating to meetings of the Town
Board of the Town Franklin. In brief, as I view the matter, the
issues involve the propriety of executive sessions held to discuss
"Town Board conduct" and a resolution adopted by the Town Board
expressing its policy that "the conversation and/or correspondence
that is part of Executive Sessions, except that which results in
Board action at the Executive Session, shall be deemed confidential
and not otherwise disclosed."

I would conjecture that the Board's policy is based upon §805-a of the General Municipal Law, which states in subdivision (1)(b)
that "no municipal officer or employee shall...disclose
confidential information acquired by him in the course of his
official duties or use such information to further his personal
interests." The problem in my view involves the meaning of the
term "confidential." From my perspective, "confidential" has a
narrow and precise technical meaning. For records or information
to be validly characterized as confidential, I believe that such a
claim must be based upon a statute that specifically confers or
requires confidentiality. Stated differently, an act of Congress
of the State Legislature must forbid disclosure in order to
characterize information as confidential.

While a variety of subjects may properly to discussed during
executive sessions and numerous records or portions thereof may
validly be withheld under the Freedom of Information Law, the
ability to exclude the public from a meeting or withhold records
does not necessarily represent or signify a requirement of
confidentiality. I note that both the Open Meetings Law and the
Freedom of Information Law are permissive. Under §105 of the
former, a public body, such as a town board, may enter into
executive session to discuss one or more of the subjects appearing
in paragraphs (a) through (h) of subdivision (1); there is no
requirement that those subjects be discussed in executive session.
Moreover, as you are aware, in order to conduct an executive
session, a motion to do so must be made and carried by a majority
vote of the total membership of a public body. If such a motion
does not carry, even though a public body might have the authority
to discuss an issue in executive session, it would not have the
obligation to do so. Similarly, under the Freedom of Information
Law, §87(2) provides that an agency may withhold records in
accordance with the grounds for denial of access that follow. The
State's highest court has found that an agency may choose to
disclose records even though it has the ability to deny access [see
Capital Newspapers v. Burns, 67 NY 2d 562 (1986)].

In sum, as a general rule, even though discussions by a public
body may be conducted in private and certain records may
justifiably be withheld, the matters considered might not be
"confidential", but rather beyond the scope of public rights of
access. In a case in which the issue was whether discussions
occurring during an executive session held by a school board could
be considered "privileged", it was held that "there is no statutory
provision that describes the matter dealt with at such a session as
confidential or which in any way restricts the participants from
disclosing what took place" (Runyon v. Board of Education, West
Hempstead Union Free School District No. 27, Supreme Court, Nassau
County, January 29, 1987). While §805-a of the General Municipal
Law may be useful for providing guidance, for the reasons described
above, I do not believe that the use of the term "confidential" is
entirely clear.

Second, §63 of the Town Law provides in part that a town board
"may determine the rules of its procedure." I believe that so long
as a rule is reasonable, it is valid. From my perspective, the
policy expressed in the resolution concerning confidentiality is
essentially a rule. Whether it is fully enforceable or valid is
questionable. I point out that the grounds for withholding records
under the Freedom of Information Law and the grounds for entry into
executive session under the Open Meetings Law are not necessarily
consistent. There may be situations in which a record could
justifiably be withheld under the Freedom of Information Law, but
a discussion of the record would have to occur in public because
there is no basis for entry into executive session, and vice versa.
For example, if a town employee transmits a memorandum in which he
or she offers an opinion or recommendation concerning a change in
policy (i.e., that business hours at Town Hall should be changed),
that person's written opinion could be withheld as intra-agency
material under §87(2)(g) of the Freedom of Information Law.
However, discussions regarding the policy must be conducted in
public, for there would be no basis for entry into executive
session. In that situation, while the record could properly be
withheld, the meeting about the content of the record would be
required to be open to the public. Again, for that reason, the use
of the term "confidential" may be misleading, difficult to
interpret and lead to unforeseen results.

Notwithstanding the foregoing, it appears that the intent of
the policy is to ensure that the best interests of the Town's
taxpayers are served. While there may be no legal prohibition
against disclosure of the information acquired during executive
sessions or records that could be withheld, that is not intended to
suggest that such disclosures would be uniformly appropriate or
ethical. Obviously, the purpose of an executive session is to
enable members of public bodies to deliberate, to speak freely and
to develop strategies in situations in which some degree of secrecy
is permitted. Similarly, the grounds for withholding records under
the Freedom of Information Law relate in most instances to the
ability to prevent some sort of harm. In both cases, inappropriate
disclosures could work against the interests of a public body as a
whole and the public generally. Further, a unilateral disclosure
by a member of a public body might serve to defeat or circumvent
the principles under which those bodies are intended to operate.
Historically, I believe that public bodies were created to order to
reach collective determinations, determinations that better reflect
various points of view within a community than a single decision
maker could reach alone. Members of boards should not in my
opinion be unanimous in every instance; on the contrary, they
should represent disparate points of view which, when conveyed as
part of a deliberative process, lead to fair and representative
decision making. Nevertheless, notwithstanding distinctions in
points of view, the decision or consensus by the majority of a
public body should in my opinion be recognized and honored by those
members who may dissent. Disclosure made contrary to or in the
absence of consent by the majority could result in unwarranted
invasions of personal privacy, impairment of collective bargaining
negotiations or even interference with criminal or other
investigations. In those kinds of situations, even though there
may be no statute that prohibits disclosure, release of information
could be damaging to individuals and the functioning of government.

Third, with respect to the ability to conduct an executive
session to discuss the conduct of the Board, I direct your
attention to §105(1)(f). That provision permits a public body to
enter into executive session to discuss:

"the medical, financial, credit or employment
history of a particular person or corporation,
or matters leading the appointment,
employment, promotion, demotion, discipline,
suspension, dismissal or removal of a
particular person or corporation..."

If, for example, a discussion pertains to the possible "removal" of
a particular person, i.e., a member of the Town Board, to that
extent, I believe that an executive session could properly be
withheld.

Lastly, I note that an executive session cannot be held in
advance of a meeting and that, in a technical sense, an executive
session cannot be scheduled prior to a meeting. As you are likely
aware, the phrase "executive session" is defined in §102(3) of the
Open Meetings Law to mean a portion of an open meeting during which
the public may be excluded. As such, an executive session is not
separate and distinct from a meeting, but rather is a portion of an
open meeting. The Law also contains a procedure that must be
accomplished during an open meeting before an executive session may
be held. Specifically, §105(1) states in relevant part that:

"Upon a majority vote of its total membership,
taken in an open meeting pursuant to a motion
identifying the general area or areas of the
subject or subjects to be considered, a public
body may conduct an executive session for the
below enumerated purposes only..."

As indicated in the language quoted above, a motion to enter into
an executive session must be made during an open meeting and
include reference to the subject or subjects to be considered
during the executive session.

Based on the foregoing, it has been consistently advised that
a public body cannot schedule or conduct an executive session in
advance of a meeting, because a vote to enter into an executive
session must be taken at an open meeting during which the executive
session is held.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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