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July 17, 1997




Ms. Phyllis T. Chen
12 Summit Court
Oyster Bay, NY 11771

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 Ms. Chen:

As you are aware, I have received your letter of June 20.
Once again, you have raised questions and sought an opinion in
relation to events pertaining to a contract between the Oyster Bay-East Norwich School District and its superintendent.

As I understand the matter, the District's attorney has
contended that the "'collective negotiations' exception under FOIL
would include the salary of someone outside the bargaining unit"
and that the information was properly withheld "on the basis of a
perceived 'effect on' collective negotiations."

In short, I disagree. Records identifying public employees
and their salaries have long been available to the public and are
specifically referenced in the Freedom of Information Law [see
§87(3)(b)]. Further, in a case determined by the State's highest
court nearly twenty years ago, a database consisting of the
contents of a number of school districts' collective bargaining
agreements, including salary and fringe benefit data, was found to
be available. In that controversy, the record was sought by a
union, and the Court of Appeals found that there was no merit to
the claim that disclosure would, under the language of §87(2)(c) of
the Freedom of Information Law, "impair present or
imminent...collective bargaining negotiations" [see Doolan v.
BOCES, 48 NY2d 341 1979)]. From my perspective, because salary
information is clearly public, and because the relationship between
a superintendent's contract and negotiations between a school
district and a union is more likely less significant than that
considered in Doolan, I do not believe that a claim that the
Superintendent's salary may be withheld can be justified.

Second, you referred to a document addressed to the Board
President by the Superintendent and dated January 31 in which the
Superintendent accepted a contract offer, and you asked whether it
would be "confidential from the public."

If your description of the facts is accurate, and if an offer
was validly made and thereafter validly accepted, the document in
question would, in my opinion, be accessible.

As a general matter, the Freedom of Information Law is based
upon a presumption of access. Stated differently, all records of
an agency are available, except to the extent that records or
portions thereof fall within one or more grounds for denial
appearing in §87(2)(a) through (i) of the Law. Communications
between the Board and the Superintendent could be characterized as
"intra-agency material" that falls within the scope of §87(2)(g),
which permits an agency to withhold records that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or

ii. instructions to staff that affect the

iii. final agency policy or determinations;

iv. external audits, including but not
limited to audits performed by the comptroller
and the federal government..."

It is noted that the language quoted above contains what in effect
is a double negative. While inter-agency or intra-agency materials
may be withheld, portions of such materials consisting of
statistical or factual information, instructions to staff that
affect the public, final agency policy or determinations or
external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently, those
portions of inter-agency or intra-agency materials that are
reflective of opinion, advice, recommendation and the like could in
my view be withheld.

Again, if a valid offer was made and validly accepted, the
record in question would appear to represent what essentially would
be a final agency determination available under §87(2)(g)(iii).
Further, the record does not appear to be the kind of document
envisioned by the exception. As stated recently by the Court of
Appeals, the exception concerning inter-agency and intra-agency
materials involves a "limited aim to safeguard internal government
consultations and deliberations", and is intended to permit an
agency to withhold "opinions, ideas, or advice exchanged as part of
the consultative or deliberative process of government decision
making" [Gould v. New York City Police Department, 89 NY2d 267,
276-277 (1996)].

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Board of Education