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October 31, 2000

FOIL-AO-12368

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

Dear

I have received your letter of September 20, as well as the materials relating to it.
You expressed concern that officials of the Sullivan West School District may have
"deliberately misrepresented the budget to the voters and may have violated New York's
Freedom of Information Law and Open Meetings Law in the process."

By way of background, you indicated that last year the Delaware Valley,
Jeffersonville-Youngsville and Narrowsburg Central School Districts merged into what is
now the Sullivan West Central School District. Following its election, the Board of
Education "held several executive sessions about the budget which resulted in their approval
and presentation to the voters..." Among the materials is a memorandum sent to the Board
by Mr. Martin Handler of the Education Department that cites a "work document that was
used to build the proposed budget", which you also enclosed. The memorandum makes
reference to "the budget presented at the workshop...in the 3-part public document format as
required by law" and states further that:

"To meet the legal requirements for the three-part document, some of the
codes are split between the three components. In addition, we allocated the
salary amounts across the appropriate salary codes and benefit codes. Our
goal was to insure that the amount built into the budget for negotiation
purposes was not readily available to the associations we will be bargaining
with."

The memorandum states that "the additions representing adjustments to salaries [are] for the
former Delaware Valley & Narrowsburg districts", specifies that the proposed figures are
"for [the Board's] review and are open for discussion in executive session" and that "all this
information is ‘CONFIDENTIAL' " (emphasis in the memorandum) You added that "no
negotiation [had been] scheduled as of the memo date." The "additions representing
adjustments" total approximately $537,000.

The "work document" containing that information, which you obtained "from an
anonymous source", was requested and the portions of that record at issue were withheld by
the District pursuant to §87(2)(c) of the Freedom of Information Law. You wrote that the
documentation provided to voters by the District indicated that "the total combined salaries
[would be] only $8,657 more than the sum of the previous separate budgets" and that,
therefore, the documentation presented to the voters included "deceptive information." It is
your view that because "the salary additions were ‘hidden' in the budget", those expenditures
will diminish the District's ability to meet its operating costs in the future.

In consideration of the foregoing, you have sought an opinion concerning whether the
Board "violated Open Meetings Laws by discussing and creating a budget in executive
session, which accommodated $536,000 in potential salary increases and without ever
publicly acknowledging such action" and whether the denial of access to records indicating
that amount "constitutes a violation of the Freedom of Information Laws."

In this regard, the courts have consistently interpreted the Freedom of Information
Law in manner that fosters maximum access to government records. As a general matter,
that statute 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.

The state's highest court, the Court of Appeals, has expressed its view of the intent of
the Freedom of Information Law on several occasions, and most recently in Gould v. New
York City Police Department [87 NY 2d 267 (1996)], stating that:

"To ensure maximum access to government records, the
'exemptions are to be narrowly construed, with the burden
resting on the agency to demonstrate that the requested material
indeed qualifies for exemption' (Matter of Hanig v. State of
New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580
N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law §
89[4][b]). As this Court has stated, '[o]nly where the material
requested falls squarely within the ambit of one of these
statutory exemptions may disclosure be withheld' (Matter of
Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393
N.E.2d 463)" (id., 275).

The Court also offered guidance to agencies and lower courts in determining rights of access
and referred to several decisions it had previously rendered, directing that:

"...to invoke one of the exemptions of section 87(2), the agency
must articulate 'particularized and specific justification' for not
disclosing requested documents (Matter of Fink v. Lefkowitz,
supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463).
If the court is unable to determine whether withheld documents
fall entirely within the scope of the asserted exemption, it
should conduct an in camera inspection of representative
documents and order disclosure of all nonexempt,
appropriately redacted material (see, Matter of Xerox Corp. v.
Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480
N.E.2d 74; Matter of Farbman & Sons v. New York City Health
& Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69,
464 N.E.2d 437)" (id.).

In the context of your request, I believe that only one of the grounds for denial, that
cited in response to your request, would be pertinent in analyzing rights of access.
Specifically, §87(2)(c) permits an agency to withhold records or portions thereof the
disclosure of which "would impair present or imminent contract awards or collective
bargaining negotiations. From my perspective, it is doubtful that a court would sustain the
District's denial of access to the records at issue. If my understanding of the matter is
accurate, the information withheld consisted of gross figures indicating moneys essentially
set aside for salary increases for teachers without being earmarked as such. The information
did not describe collective bargaining strategy; it did not deal with the numerous collective
bargaining issues other than wages; it included no detail regarding any breakdown of possible
payments or increases. In short, disclosure of those figures, without more, would not in my
view have "impaired present or imminent...collective bargaining negotiations."

If denials of access to the kind of information at issue were found to be proper and
sustainable, a school district's budget-related records, many of which are required by law to
be disclosed, would be unavailable to the public, and the public's capacity to reach reasoned
decisions prior to consideration of a budget would be minimized. As you may be aware,
boards of education are required to prepare and disclose to the public detailed information
concerning their proposed budgets. Subdivision (1) of §1716 of the Education Law, entitled
"Estimated expenses for ensuing year", states in relevant part that:

"It shall be the duty of the board of education of each district to
present at the annual budget hearing a detailed statement in
writing of the amount of money which will be required for the
ensuing year for school purposes, specifying the several
purposes and the amount for each."

Subdivision (4) requires that the proposed budget "shall be presented in three components: a
program component, a capital component and an administrative component which shall be
separately delineated...." Relevant to the issue at hand, that provision states in part that:

"The program component shall include, but need not be limited
to, all program expenditures of the school district, including the
salaries and benefits of teachers and any school administrators
or supervisors who spend a majority of their time performing
teaching duties, and all transportation operating expenses. The
capital component shall include, but need not be limited to, all
transportation capital, debt service, and lease expenditures;
costs resulting from judgements in tax certiorari proceedings or
the payment of awards from court judgments, administrative
orders or settled or compromised claims; and all facilities costs
of the school district, including facilities lease expenditures, the
annual debt service and total debt for all facilities financed by
bonds and notes of the school district, and the costs of
construction, acquisition, reconstruction, rehabilitation or
improvement of school buildings, provided that such budget
shall include a rental, operations and maintenance section that
includes base rent costs, total rent costs, operation and
maintenance charges, cost per square foot for each facility
leased by the school district, and any and all expenditures
associated with custodial salaries and benefits, service
contracts, supplies, utilities, and maintenance and repairs of
school facilities."

Arguably, the detail in the proposed budget that must be made available to the public
might, if disclosed "impair present or imminent contract awards" in any number of contexts
(i.e., leasing, or the purchase of goods and services. Nevertheless, in enacting §1716, the
Legislature apparently determined that there would be no such impairment and that the public
has the right to know, in reasonable detail, how tax dollars will be allocated. The same
conclusion should be reached in relation to the kind of information that was withheld, which,
as I understand the provision quoted above, must be included in the "program component" of
a proposed budget that must indicate "the salaries and benefits of teachers." Again, the
figures that should appear would not detail a district's negotiation strategy or identify
particular elements pertinent in the collective bargaining process. Therefore, in my view,
§87(2)(c) would not serve as a justifiable basis for withholding the information at issue.

With respect to the propriety of executive sessions, the Open Meetings Law, like the
Freedom of Information Law, is based on a presumption of openness. Meetings of public
bodies, such as boards of education, must be conducted open to the public, unless there is a
basis for entry into executive session. Section 105(1) specifies and limits the grounds for
entry into executive session.
Pertinent to the matter is paragraph (e) of §105(1), which permits a public body to
conduct an executive session regarding "collective negotiations pursuant to article fourteen of
the civil service law." Article 14 is commonly known as the "Taylor Law", and it deals with
the relationship between public employers and public employee unions. As such, it is clear
that a public body may conduct an executive session to discuss collective bargaining
negotiations. The question, therefore, involves whether or the extent to which the Board
conducted executive session to discuss the budget, as opposed to what clearly would be
collective bargaining negotiations. In my view, insofar as discussions focused on the former,
there would have been no basis for entry into executive session.

In an effort to enhance compliance with and understanding of the statutes cited in the
preceding commentary, copies of this opinion will be sent to District officials.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Board of Education
Elizabeth McKean