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October 30, 2000

FOIL-AO-12365

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

I have received your letter of September 13 in which you described a series of
problems relating to the conduct of meetings and disclosure of records by the Potsdam
Central School District Board of Education. You asked for suggestions concerning "recourse
a citizen or group of citizens might take" and added that the "district could not possibly pay
the court fees associated with taking action against them."

In this regard, aside from the issues associated with meetings and records, I believe
that citizens expressing their views, collectively, in substantial numbers, can have a
significant impact on the course of action taken by a government agency, and that by doing
so, accountability is encouraged and enhanced.

With respect to the issues raised in relation to meetings and records, a review of the
law and its judicial interpretation will be offered in the ensuing paragraphs. Although that
commentary is not binding, it is our hope that an opinion rendered by this office is
educational and persuasive, and that it serves to enable government officials to better
understand and comply with law.

You referred to "the filing of a non-criminal claim" with the District's insurance
company involving actions by District officials that allegedly resulted in "financial harm to
[y]our district." In addition, a citizen has apparently initiated a suit concerning "the financial
misrepresentations", and your request, a copy of which you enclosed, for a copy of the
"insurance claim submitted 5/10/2000" was denied on the ground that it is "part of
investigatory files."

It is noted at the outset that the phrase "part of investigatory files", which appears on
the District's application for public access to records, was part of the Freedom of Information
Law when that statute was initially enacted in 1974. However, it has not been in that statute
since it was repealed and replaced with the current version, which became effective in 1978.
The equivalent provision in the current law, §87(2)(e), pertains to the authority to withhold
records that:

"are compiled for law enforcement purposes and which, if
disclosed, would:

i. interfere with law enforcement investigations or judicial
proceedings;

ii. deprive a person of a right to a fair trial or impartial
adjudication;

iii. identify a confidential source or disclose confidential
information relating to a criminal investigation; or

iv. reveal criminal investigative techniques or procedures,
except routine techniques and procedures."

It is questionable in my view whether a claim filed with an insurance company could be
characterized as having been "compiled for law enforcement purposes." It is also
questionable whether any of the harmful effects described in subparagraphs (i) through (iv) of
§87(2)(e) would arise via disclosure. If §87(2)(e) does not apply, I do not believe that the
insurance claim could be withheld.

You also referred in your letter to requests for "the information supporting the claim."
While I am unfamiliar with the specific contents of the records at issue, it is noted that, 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 would conjecture that records "supporting the claim" may include books of account,
ledgers, contracts, checks and similar documentation dealing with financial transactions. To
characterize those kinds of records as having been compiled for law enforcement purposes,
even though they may be used in or pertinent to an investigation, would be inconsistent with
both the language and the judicial interpretation of the Freedom of Information Law. The
Court of Appeals, the state's highest court, has held on several occasions that the exceptions
to rights of access appearing in §87(2) "are to be narrowly construed to provide maximum
access, and the agency seeking to prevent disclosure carries the burden of demonstrating that
the requested material falls squarely within a FOIL exemption be articulating a particularized
and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562,
566 (1986); see also, M. Farbman & Sons v. New York City Health and Hospitals Corp., 62
NY 2d 75, 80 (1984); Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)]. Based upon the thrust
of those decisions, §87(2)(e) should be construed narrowly in order to foster access.

Further, there is case law that illustrates why §87(2)(e) should be construed narrowly,
and why a broad construction of that provision would give rise to an anomalous result.
Specifically, in King v. Dillon (Supreme Court, Nassau County, December 19, 1984), the
District Attorney was engaged in an investigation of the petitioner, who had served as a
village clerk. In conjunction with the investigation, the District Attorney obtained minutes of
meetings of the village board of trustees. Those minutes, which were prepared by the
petitioner, were requested from the District Attorney. In granting access to the minutes, the
decision indicated that "the party resisting disclosure has the burden of proof in establishing
entitlement to the exemption," and the judge wrote that he:

"must note in the first instance that the records sought were not
compiled for law enforcement purposes (P.O.L. 87[2]e).
Minutes of Village Board meetings serve a different
function...These were public records, ostensibly prepared by
the petitioner, so there can be little question of the disclosure of
confidential material."

Often records prepared in the ordinary course of business, which might already have
been disclosed under the Freedom of Information Law, become relevant to or used in a law
enforcement investigation or perhaps in litigation. In my view, when that occurs, the records
would not be transformed into records compiled for law enforcement purposes. If they
would have been available prior to their use in a law enforcement or investigative context, I
believe that they would remain available, notwithstanding their use in that context for a
purpose inconsistent with the reason for which they were prepared.

The remaining issues to which you referred pertain to the Open Meetings Law. The
first involves a "straw vote" relating to a vacancy on the Board. By way of background, the
Open Meetings Law is based on a presumption of openness. Stated differently, meetings of
public bodies must be conducted in public except to the extent that an executive session may
appropriately be held. Paragraphs (a) through (h) of §105(1) of the Open Meetings Law
specify and limit the subjects that may properly be considered during an executive session.

In my view, the only provision that might have justified the holding of an executive
session is §105(1)(f) of the Open Meetings 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..."

Under the language quoted above, it would appear that a discussion focusing on the
individual candidates could validly be considered in an executive session, for it would
involve a matter leading to the appointment of a particular person. Nevertheless, in the only
decision of which I am aware that dealt directly with the propriety of holding an executive to
discuss filling a vacancy in an elective office, the court found that there was no basis for
entry into executive session. In determining that an executive session could not properly
have been held, the court stated that:

"...respondents' reliance on the portion of Section 105(1)(f)
which states that a Board in executive session may discuss the
'appointment...of a particular person...' is misplaced. In this
Court's opinion, given the liberality with which the law's
requirements of openness are to be interpreted (Holden v.
Board of Trustees of Cornell Univ., 80 AD2d 378) and given
the obvious importance of protecting the voter's franchise this
section should be interpreted as applying only to employees of
the municipality and not to appointments to fill the unexpired
terms of elected officials. Certainly, the matter of replacing
elected officials, should be subject to public input and scrutiny"
(Gordon v. Village of Monticello, Supreme Court, Sullivan
County, January 7, 1994), modified on other grounds, 207 AD
2d 55 (1994)].

Based on the foregoing, notwithstanding its language, the court in Gordon held that
§105(1)(f) could not be asserted to conduct an executive session.

With respect to the "straw vote", in Previdi v. Hirsch [524 NYS 2d 643 (1988)],
which involved a board of education, although it was assumed by the court that the executive
sessions were properly held, it was found that "this was no basis for respondents to avoid
publication of minutes pertaining to the 'final determination' of any action, and 'the date and
vote thereon'" (id., 646). The court stated that:

"The fact that respondents characterize the vote as taken by
'consensus' does not exclude the recording of same as a 'formal
vote'. To hold otherwise would invite circumvention of the
statute.

"Moreover, respondents' interpretation of what constitutes the
'final determination of such action' is overly restrictive. The
reasonable intendment of the statute is that 'final action' refers
to the matter voted upon, not final determination of, as in this
case, the litigation discussed or finality in terms of exhaustion
or remedies" (id. 646).

Based on the foregoing, when the Board reaches a "consensus" that is reflective of its
final determination of an issue, I believe that minutes must be prepared that indicate the
manner in which each member voted. I recognize that public bodies often attempt to present
themselves as being unanimous and that a ratification of a vote is often carried out in public.
Nevertheless, if a unanimous ratification does not indicate how the members actually voted
behind closed doors, the public may be aware of the members' views on a given issue. If
indeed a consensus represents action upon which the Board relies in carrying out its duties, or
when the Board, in effect, reaches agreement on a particular subject, I believe that the
minutes should reflect the actual votes of the members.

In contrast, a "straw vote", or something like it, that is not binding and does not
represent members' action that could be construed as final, could in my view be taken in
executive session when it represents a means of ascertaining whether additional discussion is
warranted or necessary. If a "straw vote" does not represent a final action or final
determination of the Board, I do not believe that minutes including the votes of the members
would be required to be prepared.

Lastly, you referred to "a work session, which was to be a goal setting meeting and a
seminar on public relations with a state representative, [which] turned into a business
meeting." You added that action was taken to hire an individual, but that "it was a meeting
that only the board was informed of." To put the matter in perspective, §102(1) of the Open
Meetings Law defines the term "meeting" to mean "the official convening of a public body
for the purpose of conducting public business". It is emphasized that the definition of
"meeting" has been broadly interpreted by the courts. In a landmark decision rendered in
1978, the Court of Appeals found that any gathering of a quorum of a public body for the
purpose of conducting public business is a "meeting" that must be convened open to the
public, whether or not there is an intent to take action and regardless of the manner in which
a gathering may be characterized [see Orange County Publications v. Council of the City of
Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)].

Inherent in the definition and its judicial interpretation is the notion of intent. If there
is an intent that a majority of a public body will convene for the purpose of conducting public
business, such a gathering would, in my opinion, constitute a meeting subject to the
requirements of the Open Meetings Law.

I point out that the decision rendered by the Court of Appeals was precipitated by
contentions made by public bodies that so-called "work sessions" and similar gatherings held
for the purpose of discussion, but without an intent to take action, fell outside the scope of the
Open Meetings Law. In discussing the issue, the Appellate Division, Second Department,
which includes Westchester County and whose determination was unanimously affirmed by
the Court of Appeals, stated that:
"We believe that the Legislature intended to include more than
the mere formal act of voting or the formal execution of an
official document. Every step of the decision-making process,
including the decision itself, is a necessary preliminary to
formal action. Formal acts have always been matters of public
record and the public has always been made aware of how its
officials have voted on an issue. There would be no need for
this law if this was all the Legislature intended. Obviously,
every thought, as well as every affirmative act of a public
official as it relates to and is within the scope of one's official
duties is a matter of public concern. It is the entire
decision-making process that the Legislature intended to affect
by the enactment of this statute" (60 AD 2d 409, 415).

The court also dealt with the characterization of meetings as "informal," stating that:

"The word 'formal' is defined merely as 'following or according
with established form, custom, or rule' (Webster's Third New
Int. Dictionary). We believe that it was inserted to safeguard
the rights of members of a public body to engage in ordinary
social transactions, but not to permit the use of this safeguard
as a vehicle by which it precludes the application of the law to
gatherings which have as their true purpose the discussion of
the business of a public body" (id.).

Based upon the direction given by the courts, when a majority of a public body
gathers to discuss public business, in their capacities as members of the body, any such
gathering, in my opinion, would constitute a "meeting" subject to the Open Meetings Law.

If the sole intent of a gathering of the Board involves training or getting to know one
another better, or if, for example, a gathering is social in nature, I do not believe that the
Open Meetings Law would apply, for there would be no intent to conduct public business.
However, "goal setting", as I understand that phrase, would constitute a matter of public
business. If my understanding is accurate, the gathering was a "meeting" that should have
been preceded by notice given in accordance with §104 of the Open Meetings Law and
conducted open to the public to the extent required by law. If there was no intent to conduct
public business and the gathering was not a meeting subject to the requirements of the Open
Meetings Law, I believe that the Board should have waited to take action until convening a
meeting in manner consistent with that statute. Further, if action was taken at a meeting
essentially held in secret, without notice to the public, a court would have the authority to
invalidate the action in the event of a lawsuit.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Board of Education