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December 7, 2000

FOIL-AO-12405

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

As you are aware, I have received your letters of October 27 and November 15.

Several areas of your inquiry involve your ability as a member of the Board of Education of
the Shoreham Wading River Central School District Board of Education to disclose information or
express your views. For instance, during an open meeting in which the Board discussed its policy
concerning videotaping of meetings, you "revealed what [you] felt were the feelings that had been
expressed by [y]our attorney." You also asked whether "all discussions which occur in executive
session [are] privileged" and questioned the "confidentiality of material received by the Board of
Education in [y]our weekly packets." Similarly, you asked whether "a board member [is] allowed
to discuss class sizes or fund balances, [or] any information which could be gotten through a FOIL
request." A Board member also questioned the propriety of your transmission of an e-mail
communication to a number of people relating to certain programs that are carried out in the District.

From my perspective, unless a statute, an act of the Congress or the State Legislature, forbids
a member of the Board or others from disclosing specific information or records , the Board member
may choose to disclose.

In this regard, it is emphasized that the two statutes of primary significance in relation to your
questions, the Freedom of Information Law and the Open Meetings Law, are permissive. While the
Open Meetings Law authorizes public bodies to conduct executive sessions in circumstances
described in paragraphs (a) through (h) of §105(1), there is no requirement that an executive session
be held even though a public body has right to do so. Further, the introductory language of §105(1),
which prescribes a procedure that must be accomplished before an executive session may be held,
clearly indicates that a public body "may" conduct an executive session only after having completed
that procedure. If, for example, a motion is made to conduct an executive session for a valid reason,
and the motion is not carried, the public body could either discuss the issue in public, or table the
matter for discussion in the future. Similarly, although the Freedom of Information Law permits an
agency to withhold records in accordance with the grounds for denial, it has been held by the Court
of Appeals, the State's highest court, that the exceptions are permissive rather than mandatory, and
that an agency may choose to disclose records even though the authority to withhold exists [Capital
Newspapers v. Burns], 67 NY 2d 562, 567 (1986)].

I am unaware of any statute that would prohibit a Board member from disclosing the kinds
of information at issue. Further, even when information might have been obtained during an
executive session properly held or from records marked "confidential", I note that the term
"confidential" in my view has a narrow and precise technical meaning. For records or information
to be validly characterized as confidential, I believe that such a claim must be based upon a statute
that specifically confers or requires confidentiality.

For example, if a discussion by a board of education concerns a record pertaining to a
particular student (i.e., in the case of consideration of disciplinary action, an educational program,
an award, etc.), the discussion would have to occur in private and the record would have to be
withheld insofar as public discussion or disclosure would identify the student. As you may be aware,
the Family Educational Rights and Privacy Act (20 USC §1232g) generally prohibits an educational
agency from disclosing education records or information derived from those records that are
identifiable to a student, unless the parents of the student consent to disclosure. In the context of the
Open Meetings Law, a discussion concerning a student would constitute a matter made confidential
by federal law and would be exempted from the coverage of that statute [see Open Meetings Law,
§108(3)]. In the context of the Freedom of Information Law, an education record would be
specifically exempted from disclosure by statute in accordance with §87(2)(a). In both contexts, I
believe that a board of education, its members and school district employees would be prohibited
from disclosing, because a statute requires confidentiality. Again, however, no statute of which I am
aware would confer or require confidentiality with respect to the matters described in your
correspondence.

In a case in which the issue was whether discussions occurring during an executive session
held by a school board could be considered "privileged", it was held that "there is no statutory
provision that describes the matter dealt with at such a session as confidential or which in any way
restricts the participants from disclosing what took place" (Runyon v. Board of Education, West
Hempstead Union Free School District No. 27, Supreme Court, Nassau County, January 29, 1987).

Since you referred to disclosure of information obtained from the District's attorney, although
I returned the videotape containing the exchange in question, my recollection is that several Board
members made reference to the attorney's advice and that his opinion was part of the discussion.
That being so, I believe that the Board, the client, effectively waived the ability to claim that your
comments were made in contravention of the attorney-client privilege.

While there may be no prohibition against disclosure of the information acquired during
executive sessions or records that could be withheld, the foregoing is not intended to suggest such
disclosures would be uniformly appropriate or ethical. Obviously, the purpose of an executive
session is to enable members of public bodies to deliberate, to speak freely and to develop strategies
in situations in which some degree of secrecy is permitted. Similarly, the grounds for withholding
records under the Freedom of Information Law relate in most instances to the ability to prevent some
sort of harm. In both cases, inappropriate disclosures could work against the interests of a public
body as a whole and the public generally.

In the context of the situations that you described, I do not believe that your disclosure of
comments were in any way inappropriate. On the contrary, you and the others on the Board were
elected to express points of view and represent your community. Historically, I believe that public
bodies were created to order to reach collective determinations, determinations that better reflect
various points of view within a community than a single decision maker could reach alone.
Members of boards should not in my opinion be unanimous in every instance; rather, in my view,
they should represent disparate points of view which, when conveyed as members of the community
and part of a deliberative process, lead to fair and representative decision making.

With specific reference to the propriety of your discussion of class sizes or fund balances,
I believe that you were elected to discuss those issues and that a failure to do so would deprive the
public of the ability to communicate with an elected official and to know of that official's views on
matters within the scope of his or her official duties. With respect to e-mail, I ask how you, as a
Board member, could have a lesser right to communicate or offer an opinion than any other member
of the public. In short, I disagree with the suggestion that your e-mail communication was in some
way improper; on the contrary, you were elected to be an opinion leader and communicate on issues
of public concern within your community, and doing so is in my opinion not only proper but
precisely what you were elected to do.

Next, with respect to the materials distributed to Board members, I point out that an assertion
or claim of confidentiality, unless it is based upon a statute, is likely meaningless. As suggested
earlier, 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, again, 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 view serve to enable an agency to withhold a record.

The contents of the records in question serve as the factors relevant to an analysis of the
extent to which they may be withheld or must be disclosed. In my view, several of the grounds for
denial may be pertinent to such an analysis.

Records prepared by District staff and forwarded to members of the Board would constitute
intra-agency materials that fall within the coverage of §87(2)(g) of the Freedom of Information Law.
That provision 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.

It is emphasized that the Court of Appeals has specified that the contents of intra-agency
materials determine the extent to which they may be available or withheld, for it was held that:

"While the reports in principle may be exempt from disclosure, on
this record - which contains only the barest description of them - we
cannot determine whether the documents in fact fall wholly within the
scope of FOIL's exemption for 'intra-agency materials,' as claimed by
respondents. To the extent the reports contain 'statistical or factual
tabulations or data' (Public Officers Law section 87[2][g][i], or other
material subject to production, they should be redacted and made
available to the appellant" [Xerox Corp. v. Town of Webster, 65 NY
2d 131, 133 (1985)].

Therefore, as indicated earlier, intra-agency materials may be accessible or deniable in whole or in
part, depending upon their specific contents.

Also relevant may be §87(2)(b), which enables an agency to withhold records or portions
thereof which if disclosed would result in an unwarranted invasion of privacy. That provision might
be applied with respect to a variety of matters relating to hiring, evaluation or discipline of teachers
or other staff, for example.

Section 87(2)(c) of the Freedom of Information Law permits an agency to withhold records
to the extent that disclosure "would impair present or imminent contract awards or collective
bargaining negotiations". When the District is engaged in collective bargaining negotiations,
information provided to the Board might in some instances fall within that exception.

As discussed previously, §87(2)(a) pertains to records that are exempted from disclosure by
state or federal statute. One such statute is the Family Educational Rights and Privacy Act (20
U.S.C. §1232g). In brief, that statute generally forbids a school district from disclosing personally
identifiable information concerning students, unless the parents of students consent to disclosure.

In sum, a blanket denial of access to the records in question would likely be inconsistent with
the Freedom of Information Law. However, it is also likely that one or more grounds for denial
could appropriately be cited withhold portions of those records.

It is noted, too, that the grounds for withholding records appearing in the Freedom of
Information Law and the grounds for entry into executive session appearing in §105(1) of the Open
Meetings Law are not necessarily consistent. For instance, a recommendation to modify policy or
to change the date of a board meeting would constitute intra-agency material that could be withheld
pursuant to §87(2)(g) of the Freedom of Information Law. However, when those issues are raised
at a Board meeting, there would be no valid basis for conducting an executive session. Therefore,
even though records might be withheld in accordance with law, it does not necessarily follow that
a meeting pertaining to those records may properly be closed or that it is reasonable to withhold
them.

Lastly, with regard to the confidentiality of meetings of subcommittees of the Board, when
a committee or subcommittee consists solely of members of a public body, such as the Board, I
believe that the Open Meetings Law is applicable.

By way of background, when the Open Meetings Law went into effect in 1977, questions
consistently arose with respect to the status of committees, subcommittees and similar bodies that
had no capacity to take final action, but rather merely the authority to advise. Those questions arose
due to the definition of "public body" as it appeared in the Open Meetings Law as it was originally
enacted. Perhaps the leading case on the subject also involved a situation in which a governing body,
a school board, designated committees consisting of less than a majority of the total membership of
the board. In Daily Gazette Co., Inc. v. North Colonie Board of Education [67 AD 2d 803 (1978)],
it was held that those advisory committees, which had no capacity to take final action, fell outside
the scope of the definition of "public body".

Nevertheless, prior to its passage, the bill that became the Open Meetings Law was debated
on the floor of the Assembly. During that debate, questions were raised regarding the status of
"committees, subcommittees and other subgroups." In response to those questions, the sponsor
stated that it was his intent that such entities be included within the scope of the definition of "public
body" (see Transcript of Assembly proceedings, May 20, 1976, pp. 6268-6270).

Due to the determination rendered in Daily Gazette, supra, which was in apparent conflict
with the stated intent of the sponsor of the legislation, a series of amendments to the Open Meetings
Law was enacted in 1979 and became effective on October 1 of that year. Among the changes was
a redefinition of the term "public body". "Public body" is now defined in §102(2) to include:

"...any entity for which a quorum is required in order to conduct
public business and which consists of two or more members,
performing a governmental function for the state or for an agency or
department thereof, or for a public corporation as defined in section
sixty-six of the general construction law, or committee or
subcommittee or other similar body of such public body."

Although the original definition made reference to entities that "transact" public business, the current
definition makes reference to entities that "conduct" public business. Moreover, the definition makes
specific reference to "committees, subcommittees and similar bodies" of a public body.

In view of the amendments to the definition of "public body", I believe that any entity
consisting of two or more members of a public body, such as a committee or subcommittee
consisting of members of the Agency, would fall within the requirements of the Open Meetings Law,
assuming that a committee discusses or conducts public business collectively as a body [see Syracuse
United Neighbors v. City of Syracuse, 80 AD 2d 984 (1981)]. Further, as a general matter, I believe
that a quorum consists of a majority of the total membership of a body (see e.g., General
Construction Law, §41). Therefore, if, for example, the Board consists of seven, its quorum would
be four; in the case of a committee consisting of three, a quorum would be two.

When a committee is subject to the Open Meetings Law, I believe that it has the same
obligations regarding notice and openness, for example, as well as the same authority to conduct
executive sessions, as a governing body [see Glens Falls Newspapers, Inc. v. Solid Waste and
Recycling Committee of the Warren County Board of Supervisors, 195 AD 2d 898 (1993)].

In sum, assuming that committees or subcommittees consist of two or more members of the
Board, I believe that they would constitute public bodies subject to the Open Meetings Law, and that
a quorum of those bodies would be a majority of their membership.

Further, as you are aware, a copy of an opinion was sent to the Board recently in which it was
advised that any person may tape or video record an open meeting of a public body, so long as the
use of the recording device is not disruptive or obtrusive.

I hope that I have been of assistance. Should any further questions arise, please feel free to
contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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