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December 10, 1997


Mr. Dennis D. Michaels
Deputy Town Attorney
Town of Orangetown
Town Hall
Orangeburg, NY 10962

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 Mr. Michaels:

I have received your letter of November 4 and the Town of
Orangetown's proposed new Code of Ethics. You indicated that issues have
arisen concerning the proposed Code in relation to both the Freedom of
Information and Open Meetings Law and asked that I comment on those
portions of the proposal that pertain to those statutes.

Your interest in compliance with those statutes is much appreciated,
and enclosed are several opinions rendered by this office dealing with issues
that have arisen concerning municipal codes of ethics. However, in addition
to those opinions, I would like to offer the following comments.

First, there are references in the proposed Code in several instances to
confidentiality. From my perspective, an assertion or claim of confidentiality,
unless it is based upon a statute, is likely meaningless. When confidentiality
is conferred by a statute, records fall outside the scope of rights of access
pursuant to §87(2)(a) of the Freedom of Information Law, which states that
an agency may withhold records that "are specifically exempted from
disclosure by state or federal statute". If there is no statute upon which an
agency can rely to characterize records as "confidential" or "exempted from
disclosure", the records are subject to whatever rights of access exist under
the Freedom of Information Law [see Doolan v.BOCES, 48 NY 2d 341
(1979); Washington Post v. Insurance Department, 61 NY 2d 557 (1984);
Gannett News Service, Inc. v. State Office of Alcoholism and Substance
Abuse, 415 NYS 2d 780 (1979)]. As such, an assertion of confidentiality
without more, would not in my opinion guarantee or require confidentiality.

Moreover, it has been held by several courts, including the Court of
Appeals, that an agency's regulations or the provisions of a local enactment,
such as an administrative code, local law, charter or ordinance, for example,
do not constitute a "statute" [see e.g., Morris v. Martin, Chairman of the State
Board of Equalization and Assessment, 440 NYS 2d 365, 82 Ad 2d 965,
reversed 55 NY 2d 1026 (1982); Zuckerman v. NYS Board of Parole, 385
NYS 2d 811, 53 AD 2d 405 (1976); Sheehan v. City of Syracuse, 521 NYS
2d 207 (1987)]. For purposes of the Freedom of Information Law, a statute
would be an enactment of the State Legislature or Congress. Therefore, a
local enactment cannot confer, require or promise confidentiality. This not to
suggest that many of the records used, developed or acquired in conjunction
with an ethics code must be disclosed; rather, I am suggesting that those
records may in some instances be withheld in accordance with the grounds for
denial appearing in the Freedom of Information Law, and that any local
enactment that is inconsistent with that statute would be void to the extent of
any such inconsistency.

Similarly, insofar as a local enactment is more restrictive concerning
access than the Open Meetings Law, I believe that it would be invalid.
Section 110 of the Open Meetings Law, entitled "Construction with other
laws," states in subdivision (1) that:

"Any provision of a charter, administrative
code, local law, ordinance, or rule or
regulation affecting a public body which is
more restrictive with respect to public access
than this article shall be deemed superseded
hereby to the extent that such provision is
more restrictive than this article."

Further, although the Open Meetings Law is based upon a presumption of
openness and meetings of public bodies must generally by conducted open to
the public, §105(1) of the Law includes grounds for entry for entry into
executive session.

Relevant to the duties of a board of ethics is §105(1)(f) of the Law,
which permits a public body to enter into an executive session to discuss:

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

If the issue before a board of ethics involves a particular person in conjunction
with one or more of the subjects listed in §105(1)(f), I believe that an
executive session could appropriately be held. For instance, if the issue deals
with the "financial history" of a particular person or perhaps matters leading
to the discipline of a particular person, §105(1)(f) could in my opinion be
cited for the purpose of entering into an executive session.

In those instances in which the Board of Ethics is engaged in a quasi-judicial proceeding, such a proceeding would be outside the coverage of the
Open Meetings Law [see Open Meetings Law, §108(1)].

In short, while I do not believe that the use of the term "confidential"
is technically appropriate, the ability to cite grounds for denial in the Freedom
of Information Law or grounds for entry into executive session or exemptions
from the Open Meetings Law would frequently result in the same outcome as
in the proposed Code.

Second, however, an area in which I believe the concept of
confidentiality may be inconsistent with the Freedom of Information Law
pertains to financial disclosure statements.

Reference is made in the Code to the New York State Temporary
Commission on Local Government Ethics. Although the Commission no
longer exists, various provisions concerning its former role are in my view
relevant to an analysis of the issue. While the advisory jurisdiction of this
office involves the Freedom of Information Law, in this instance, in order to
provide advice concerning the matter, it is necessary to interpret certain
provisions of the General Municipal Law.

The central issue involves which law applies -- the Freedom of
Information Law, the General Municipal Law, or perhaps a local enactment.

By way of legislative history, when a municipality elected to file
financial disclosure statements with the Commission when it existed, §813 of
the General Municipal Law provided direction. Specifically, paragraph (a) of
subdivision (18) of that statute states that:

"Notwithstanding the provisions of article six
of the public officers law, the only records of
the commission which shall be available for
public inspection are:

(1) the information set forth in an annual
statement of financial disclosure filed pursuant
to local law, ordinance or resolution or filed
pursuant to section eight hundred eleven or
eight hundred twelve of this article except the
categories of value or amount which shall
remain confidential and any other item of
information deleted pursuant to paragraph h of
subdivision nine of this section, as the case
may be;

(2) notices of delinquency sent under
subdivision eleven of this section;

(3) notices of reasonable cause sent under
paragraph b of subdivision twelve of this
section; and

(4) notices of civil assessments imposed under
this section."

As such, §813(18)(a) governed rights of access to records of "the
commission".

Notably, in a memorandum prepared by the Commission in April of
1991 and transmitted to me, the Commission wrote that "The Act does not
specifically address the public availability of annual financial disclosure
statements filed with a municipality's own local ethics board." That
memorandum states, however, that "the Act does authorize a Section 811
Municipality to promulgate rules and regulations, which 'may provide for the
public availability of items of information to be contained on such form of
statement of financial disclosure'." Section 811(1)(c) authorizes the
governing body of a municipality to promulgate:

"rules and regulations pursuant to local law,
ordinance or resolution which rules or
regulations may provide for the public
availability of items of information to be
contained on such form of statement of
financial disclosure, the determination of
penalties for violation of such rules or
regulations, and such other powers as are
conferred upon the temporary state
commission on local government ethics
pursuant to section eight hundred thirteen of
this article as such local governing body
determines are warranted under the
circumstances."

In addition, §811(1)(d) states in part that if a local board of ethics is
designated to carry out duties that would otherwise be performed by the
Commission:

"then such local law, ordinance or resolution
shall confer upon the board appropriate
authority to enforce such filing requirement,
including the authority to promulgate rules and
regulations of the same import as those which
the temporary state commission on local
government ethics enjoys under section eight
hundred thirteen of this article."

In turn, §813(9)(c) states in relevant part that the Commission shall "[a]dopt,
amend, and rescind rules and regulations to govern procedures of the
commission..." As such, it appears that the regulatory authority of the
Commission was and, therefore, a local board of ethics, is restricted to the
procedural implementation of the Ethics in Government Act. In my view,
issues concerning rights of access to records do not involve matters of
procedure, but rather matters of substantive law that are governed by statute.


In my opinion, the governing statute is the Freedom of Information
Law. In brief, 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.

Under §813(18)(a)(1) of the General Municipal Law, financial
disclosure statements filed with the Commission were available, except those
portions indicating categories of value or amount or when it is found that
reported items "have no material bearing on the discharge of the reporting
person's official duties." In my view, the same information that was exempted
from disclosure could be deleted from a financial disclosure statement
maintained by a municipality under the Freedom of Information Law on the
ground that disclosure would constitute "an unwarranted invasion of personal
privacy" [see §87(2)(b) and 89(2)(b)]. Rather than being "confidential", I
believe that financial disclosure statements would be accessible, except to the
extent that disclosure would result in an unwarranted invasion of personal
privacy in accordance with the preceding commentary.

Although the standard concerning privacy is flexible and may be
subject to conflicting interpretations, the courts have provided substantial
direction regarding the privacy of public employees. It is clear that public
employees enjoy a lesser degree of privacy than others, for it has been found
in various contexts that public employees are required to be more accountable
than others. With regard to records pertaining to public employees, the courts
have found that, as a general rule, records that are relevant to the performance
of a public employee's official duties are available, for disclosure in such
instances would result in a permissible rather than an unwarranted invasion of
personal privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS 2d
905 (1975); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd
45 NY 2d 954 (1978); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980);
Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct.,
Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of
Claims, 1978); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia
v. NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988);
Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty.,
NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d 562 (1986)].
Conversely, to the extent that records are irrelevant to the performance of
one's official duties, it has been found that disclosure would indeed constitute
an unwarranted invasion of personal privacy [see e.g., Matter of Wool, Sup.
Ct., Nassau Cty., NYLJ, Nov. 22, 1977].

Several of the decisions cited above, for example, Farrell, Sinicropi,
Geneva Printing, Scaccia and Powhida, dealt with situations in which
determinations indicating findings of misconduct or the imposition of some
sort of disciplinary action pertaining to particular public employees were
found to be available. However, when allegations or charges of misconduct
have not yet been determined or did not result in disciplinary action, the
records relating to such allegations may, in my view, be withheld, for
disclosure would result in an unwarranted invasion of personal privacy [see
e.g., Herald Company v. School District of City of Syracuse, 430 NYS 2d 460
(1980)]. Further, to the extent that charges are dismissed or allegations are
found to be without merit, I believe that they may be withheld.

The other provision of relevance, §87(2)(g), states that an agency may
withhold records that:

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

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

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.
Records prepared in conjunction with an inquiry or investigation would in my
view constitute intra-agency materials. Insofar as they consist of opinions,
advice, conjecture, recommendations and the like, I believe that they could be
withheld. Factual information would in my view be available, except to the
extent, under the circumstances, that disclosure would result in an
unwarranted invasion of personal privacy.

The foregoing in my view is consistent in substance with the
provisions of the proposed Code that you highlighted relating to functions of
the Board regarding its investigation of conflicts of interest or misconduct.
For example, in §9(B)(5), reference is made to a situation in which an officer
or employee is essentially given an admonition, and if he or she rectifies the
situation, records regarding the matter remain beyond public rights of access.
In that situation, no final determination reflective of a finding of misconduct
would yet have been made, and I agree that the records could be withheld.
I believe that the obligation to disclose exists only after a final determination
has been made to the effect that a public officer or employee has been found
to have engaged in some sort of misconduct. Unless and until that occurs,
records may in my opinion be withheld to protect against an unwarranted
invasion of privacy.

I hope that I have been of assistance. If you would like to discuss the
matter, please feel free to contact me.

Sincerely,



Robert J. Freeman
Executive Director

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