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October 17, 2000

FOIL-AO-12342

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FROM: Robert J. Freeman, Executive Director

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, unless otherwise indicated.

Dear Ms. Passer:

I have received your letter of August 18 in which you sought assistance in obtaining
the names of individuals who purchased bricks to be placed in a walkway at the Mexico High
School whose bricks were removed. You indicated that letters were sent by the District to
those persons, and that it is your understanding that the letters do not include the language of
the inscriptions that had appeared on the bricks. You added that the District might have
indicated in the letters that the bricks had been removed and destroyed "due to religious or
political content."

If your assumptions are accurate, I believe that the names of the individuals in
question must be disclosed. In this regard, I offer the following comments.

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. I point out that the introductory language of §87(2) refers to the
authority to withhold "records or portions thereof" that fall within one or more of the grounds
for denial that follow. The phrase highlighted in the preceding sentence in my view
evidences a recognition on the part of the State Legislature that in some instances a single
record might include both accessible and deniable information, and that it is an agency's duty
to disclose those portions that do not fall within an exception to rights of access..

Under the circumstances, it appears that only one of the grounds for denial is
pertinent to the matter. Specifically, §87(2)(b) states that an agency may withhold records to
the extent that disclosure would constitute "an unwarranted invasion of personal privacy."
According to the Court of Appeals, the State's highest court, "the essence of exemption"
involves an intent to enable an agency to withhold items "that would ordinarily and
reasonably be regarded as intimate, private information" [Hanig v. State Department of
Motor Vehicles, 79 NY2d 106, 112 (1992)].

From my perspective, insofar as information found within a record names an
individual and also expresses a religious belief, for example, since such belief is inherently
personal, either the name or the expression of the religious belief could be withheld; the
combination of the name and the indication of one's personal belief would, in my view,
constitute information of an intimate, personal nature, and therefore, would result in an
unwarranted invasion of personal privacy if disclosed. Similarly, if a record of the
inscription on a brick included a statement reflective of one's views on a political matter (i.e.,
in favor of or against abortion, gun control, a particular candidate or office holder), that
information coupled with one's identity would in my opinion constitute an unwarranted
invasion of privacy if made available to the general public.

However, if the portion of a record indicating one's religious or political belief is
deleted, and the remainder of the record merely includes a name, I do not believe that
disclosure of the name alone would, if disclosed, result in an unwarranted invasion of
personal privacy. In short, without the information reflective of one's personal belief, there
would be nothing intimate involved in merely disclosing the name. For that reason, if the
District maintains a record or records indicating that bricks had been removed, the names of
those whose bricks were removed should be disclosed. If such a record or records also
include intimate, personal information, such as an indication of one's religious or personal
beliefs, those portions may in my view be withheld in accordance with commentary offered
in the preceding paragraphs.

You also referred by phone to a recent executive session held by the Board of
Education prior to a meeting, and you indicated that the Superintendent asserted that it was
proper do so. If that is his contention, I respectfully disagree.

I point out that 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 "general area or areas of the
subject or subjects to be considered" during the executive session.

It has been consistently advised and held 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. In a decision involving the propriety of scheduling executive sessions prior to
meetings, it was held that:

"The respondent Board prepared an agenda for each of the five
designated regularly scheduled meetings in advance of the time
that those meetings were to be held. Each agenda listed
'executive session' as an item of business to be undertaken at
the meeting. The petitioner claims that this procedure violates
the Open Meetings Law because under the provisions of Public
Officers Law section 100[1] provides that a public body cannot
schedule an executive session in advance of the open meeting.
Section 100[1] provides that a public body may conduct an
executive session only for certain enumerated purposes after a
majority vote of the total membership taken at an open meeting
has approved a motion to enter into such a session. Based upon
this, it is apparent that petitioner is technically correct in
asserting that the respondent cannot decide to enter into an
executive session or schedule such a session in advance of a
proper vote for the same at an open meeting" [Doolittle, Matter
of v. Board of Education, Sup. Cty., Chemung Cty., July 21,
1981; note: the Open Meetings Law has been renumbered and
§100 is now §105].

For the reasons expressed in the preceding commentary, a public body cannot in my
view schedule an executive session in advance of a meeting. In short, because a vote to enter
into an executive session must be made and carried by a majority vote of the total
membership during an open meeting, it cannot be known in advance of that vote that the
motion will indeed be approved.

In an effort to enhance compliance with and understanding of the Freedom of
Information and Open Meetings Laws, copies of this opinion will be sent to the Board of
Education and the Superintendent.

I hope that I have been of assistance.

RJF:jm

cc: Board of Education
Superintendent