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March 5, 2001

FOIL-AO-12558

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.

Dear

I have received your letter of February 1 and the materials attached to it. You referred to
certain actions recently taken in the City of Rome and have sought an advisory opinion concerning
their propriety.

The first, an "Official Statement of Executive Policy" ("the Policy") issued by the Mayor,
prohibits members of the City's senior staff or department heads from disclosing information
discussed at meetings with the Mayor and other City officials. The information that cannot be
disclosed involves "statutorily confidential information" and includes a variety of considerations
based on a combination of provisions found in the grounds for withholding records listed in §87(2)
of the Freedom of Information Law and the grounds for entry into executive session appearing in
§105(1) of the Open Meetings Law. Additionally, the policy prohibits the disclosure of:

"Any sensitive matter or information that if disclosed would disrupt
the efficient and effective operations of the City government or would
impair the public officer's close working relationship with the
Mayor."

A violation of the policy is "considered misconduct and will be cause for discipline."

The second is an ordinance that prohibits City officers or employees from disclosing " by any
means" certain information "discussed or deliberated during a properly convened executive session."
As in the case of the Policy, this prohibition appears to be based on a combination of exceptions to
rights of access in the Freedom of Information Law and the Open Meeting Law's grounds for entry
into executive session. Further, a violation " shall be punishable pursuant to the general penalty
provision of the Code of Ordinances."

From my perspective, the actions are of questionable legality. I believe, too, that many
routine disclosures would constitute violations of the Policy or the Ordinance, and a careful analysis
of the matter indicates, in my view, that it is based on an erroneous presumption.

In this regard, I offer the following comments.

First, it appears that the prohibitions adopted by the City of Rome were precipitated by
request for an opinion sought by the City's Corporation Counsel from the Attorney General.
Corporation Counsel asked "whether a municipality has statutory authority, by local law or in its
code of ethics to prohibit members of the city council from disclosing matters discussed in executive
session." In an informal opinion (Informal Opinion No. 2000-2) prepared by James D. Cole,
Assistant Solicitor General, it was advised that "[a]lthough nothing in the Public Officers Law
directly prohibits such disclosure, such a prohibition is entirely consistent with the provisions of the
Freedom of Information Law and the Open Meetings Law." The opinion was careful to point out,
however, that "[a]ny such restriction on speech would, of course, be subject to state and federal
constitutional requirements." It was advised that:

"Disclosure of matters discussed in executive session would defeat
the purpose of the apparent legislative intent of authorizing local
legislative bodies to discuss these limited matters in private.
Disclosure would be contrary to the public welfare. A locally enacted
provision prohibiting disclosure would thus further the statutory
purpose of executive sessions and promote the public interest."

The opinion then cited and appears to have relied heavily on a decision rendered by the Appellate
Division, Third Department, Kline v. County of Hamilton [235 AD2d 44, 663 NYS 2d 339 (1997)].

Kline involved a request made under the Freedom of Information Law for tape recordings
and transcripts of executive sessions, and the Court referred to the first ground for denial, §87(2)(a),
which pertains to records that "are specifically exempted from disclosure by state or federal statute",
and concluded that:

"While the purpose of FOIL is to lift ‘the cloak of secrecy or
confidentiality' (Public Officers Law, §84) from governmental
records which are part of the governmental process, where, as here,
confidentiality has been specifically sanctioned by Public Officers
Law §§105 and 106, the records at issue fall within the exemption of
Public Officers Law § 87(2)(a) and are to be shielded from public
disclosure" (id., 341).

Following its reference to Kline, the Attorney General concluded that:

"...it seems clear seems clear that under the Public Officers Law a
governing body of a municipality may withhold any records of
discussions properly taking place in executive session. Section
806(1)(a) of the General Municipal Law, authorizing municipal codes
of ethics that prohibit, inter alia, disclosure of information, is
consistent with and reinforces this fact. Accordingly, we conclude
that a local legislative body, by local law or in its code of ethics, has
statutory authority to prohibit a legislator from disclosing matters
discussed in executive session. We emphasize that the decision to go
into executive session is discretionary, and that any such prohibition
on speech would be subject to state and federal constitutional
requirements."

With due respect to the Appellate Division and the Attorney General, the conclusion reached
with regard to the notion of "confidentiality" and the scope of §87(2)(a) is inconsistent with more
detailed analyses found in judicial decisions rendered in New York and by federal courts in
construing the federal Freedom of Information Act (5 USC §552). To be confidential under the
Freedom of Information Law, I believe that records must "specifically exempted from disclosure by
state or federal statute" in accordance with §87(2)(a). Similarly, §108(3) of the Open Meetings Law
refers to matters made confidential by state or federal law as "exempt" from the provisions of that
statute.

Both the Court of Appeals and federal courts in construing access statutes have determined
that the characterization of records as "confidential" or "exempted from disclosure by statute" must
be based on statutory language that specifically confers or requires confidentiality. As stated by the
Court of Appeals:

"Although we have never held that a State statute must expressly state
it is intended to establish a FOIL exemption, we have required a
showing of clear legislative intent to establish and preserve that
confidentiality which one resisting disclosure claims as protection"
[Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)].

In like manner, in construing the equivalent exception to rights of access in the federal Act,
it has been found that:

"Exemption 3 excludes from its coverage only matters that are:

specifically exempted from disclosure by statute
(other than section 552b of this title), provided that
such statute (A) requires that the matters be
withheld from the public in such a manner as to
leave no discretion on the issue, or (B) establishes
particular criteria for withholding or refers to
particular types of matters to be withheld.

"5 U.S.C. § 552(b)(3) (1982) (emphasis added). Records sought to
be withheld under authority of another statute thus escape the release
requirements of FOIA if – and only if – that statute meets the
requirements of Exemption 3, including the threshold requirement
that it specifically exempt matters from disclosure. The Supreme
Court has equated ‘specifically' with ‘explicitly.' Baldridge v.
Shapiro, 455 U.S. 345, 355, 102 S. Ct. 1103, 1109, 71 L.Ed.2d 199
(1982). ‘[O]nly explicitly non-disclosure statutes that evidence a
congressional determination that certain materials ought to be kept in
confidence will be sufficient to qualify under the exemption.' Irons
& Sears v. Dann, 606 F.2d 1215, 1220 (D.C.Cir.1979) (emphasis
added). In other words, a statute that is claimed to qualify as an
Exemption 3 withholding statute must, on its face, exempt matters
from disclosure"[Reporters Committee for Freedom of the Press v.
U.S. Department of Justice, 816 F.2d 730, 735 (1987); modified on
other grounds,831 F.2d 1184 (1987); reversed on other grounds, 489
U.S. 789 (1989); see also British Airports Authority v. C.A.B.,
D.C.D.C.1982, 531 F.Supp. 408; Inglesias v. Central Intelligence
Agency, D.C.D.C.1981, 525 F.Supp, 547; Hunt v. Commodity
Futures Trading Commission, D.C.D.C.1979, 484 F.Supp. 47; Florida
Medical Ass'n, Inc. v. Department of Health, Ed. & Welfare,
D.C.Fla.1979, 479 F.Supp. 1291].

In short, to be "exempted from disclosure by statute", both state and federal courts have determined
that a statute must leave no discretion to an agency: it must withhold such records.

In contrast, when records are not exempted from disclosure by a separate statute, both the
Freedom of Information Law and its federal counterpart are permissive. Although an agency may
withhold records in accordance with the grounds for denial appearing in §87(2), the Court of Appeals
in a decision cited earlier held that the agency is not obliged to do so and may choose to disclose,
stating that:

"...while an agency is permitted to restrict access to those records
falling within the statutory exemptions, the language of the exemption
provision contains permissible rather than mandatory language, and
it is within the agency's discretion to disclose such records...if it so
chooses" (Capital Newspapers, supra, 567).

The only situations in which an agency cannot disclose would involve those instances in which a
statute other than the Freedom of Information Law prohibits disclosure. The same is so under the
federal Act. While a federal agency may withhold records in accordance with the grounds for denial,
it has discretionary authority to disclose. Stated differently, there is nothing inherently confidential
about records that an agency may choose to withhold or disclose; only when an agency has no
discretion and must deny access would records be confidential or "specifically exempted from
disclosure by statute" in accordance with §87(2)(a).

The same analysis is applicable in the context of the Open Meetings Law. While that statute
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 the right to do so. 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.

Since a public body may choose to conduct an executive session or discuss an issue in public,
information expressed during an executive session is not "confidential." To be confidential, again,
a statute must prohibit disclosure and leave no discretion to an agency or official regarding the ability
to disclose.

By means of 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.

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).
In the context of most of the duties of most municipal boards, councils or similar bodies, there is no
statute that forbids disclosure or requires confidentiality. Again, the Freedom of Information Law
states that an agency may withhold records in certain circumstances; it has discretion to grant or deny
access. The only instances in which records may be characterized as "confidential" would, based
on judicial interpretations, involve those situations in which a statute prohibits disclosure and leaves
no discretion to a person or body.

In short, I believe that the presumption that records that may be withheld or that information
that may be discussed in executive session are confidential and, therefore, exempted from disclosure
by statute is inaccurate.

In the Mayor's Statement of Executive Policy, the prohibition against disclosure refers to
"statutorily confidential information" and then lists a variety of "matters" which if disclosed would
violate the Policy. In my opinion, those matters represent areas that, by law need not be disclosed;
they are not matters that cannot be disclosed. The same would be so under the Ordinance, for it
refers to matters that may but are not required to be considered in executive session.

Second, viewing the issue from a different vantage point, based on a decision rendered by
the U.S. Court of Appeals for the Second Circuit [Harman v. City of New York, 140 F.3d 111 (2nd
Cir. 1998)], it appears that the Executive Policy and the Ordinance may be unconstitutional. In
Harman, the New York City Human Resources Administration (HRA) adopted an executive order
that forbade its employees:

"...from speaking with the media regarding any policies or activities
of the agency without first obtaining permission from the agency's
media relations department. The City contends that these policies are
necessary to meet the agencies' obligations under federal and state
law to protect the confidentiality of reports and information relating
to children, families and other individuals served by the agencies"
(id., 115).

I note that §136 of the Social Services Law prohibits a social services agency from disclosing
records identifiable to an applicant for or recipient of public assistance. Additionally, §372 of the
Social Services Law prohibits the disclosure of records identifiable to "abandoned, delinquent,
destitute, neglected or dependent children..." As such, there is no question that many of HRA's
records are exempted from disclosure by statute and are, therefore, confidential. Nevertheless, the
proceeding in Harman was precipitated by commentary that was not identifiable to any particular
child or family; rather it involved the operation of the agency. As specified by the Court:

"...neither the Plaintiffs nor the public has any protected interest in
releasing statutorily confidential information. Given the network
of laws forbidding the dissemination of such information, Plaintiffs
wisely concede this point. Therefore, we evaluate the interests of
employees and of the public only in commenting on non-confidential
agency policies and activities" (emphasis mine) (id., 119).

The Court in that passage highlighted the critical aspect of the point made earlier: that records may
be characterized and exempted from disclosure by statute only when a statute forbids disclosure.

In finding that the order prohibiting speech that did not involve information that is exempted
from disclosure by statute, the Court stated initially that:

"Individuals do not relinquish their First Amendment rights by
accepting employment with the government. See Pickering v. Board
of Educ., 391 U.S. 563, 568, 88 S. Ct. 1731, 1734, 20 L. Ed. 2d 811
(1968). However, the Supreme Court has recognized that the
government ‘may impose restraints on the job-related speech of
public employees that would be plainly unconstitutional if applied to
the public at large.' United States v. National Treasury Employees
Union, 513 U.S. 454, 465, 115 S. Ct. 1003, 1012, 130 L. Ed2d 964
(1995) (NTEU). In evaluating the validity of a restraint on
government employee speech, courts must ‘arrive at a balance
between the interests of the [employee], as a citizen, in commenting
upon matters of public concern and the interest of the State, as an
employer, in promoting efficiency of the public services it performs
through its employees. Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-
35"(id., 117).

In considering the "balancing test", it was held that "where the employee speaks on matters
of public concern, the government bears the burden of justifying any adverse employment action"
and that:

"This burden is particularly heavy where, as here, the issue is not an
isolated disciplinary action taken in response to one employee's
speech, but is, instead, a blanket policy designed to restrict expression
by a large number of potential speakers. To justify this kind of
prospective regulation, ‘[t]he Government must show that the
interests of both potential audiences and a vast group of present and
future employees in a broad range of present and future expression
are outweighed by that expression's ‘necessary impact on the actual
operation' of the Government." NTEU, 513 U.S. at 468, 115 S. Ct.
at 1014 (quoting Pickering, 391 U.S. at 571, 88 S.Ct. at 1736)...

"‘[S]peech concerning public affairs is more than self-
expression; it is the essence of self-government.')
While the government has special authority to
proscribe the speech of its employees , ‘[v]igilance is
necessary to ensure that public employers do not use
authority over employees to silence discourse, not
because it hampers public functions but simply
because superiors disagree with the content of
employees' speech.' Rankin, 483 U.S. at 384, 107 S.
Ct. at 2896.

"A restraint on government employee expression ‘also imposes a
significant burden on the public's right to read and hear what the
employees would otherwise have written and said.' NTEU, 513 U.S.
at 470, 115 S.Ct. at 1015. The Supreme Court has noted that
‘[g]overnment employees are often in the best position to know what
ails the agencies for which they work; public debate may gain much
from their informed opinions.' Waters v. Churchill, 511 U.S. 661,
674, 114 S.Ct. 1878, 1887, 128 L.Ed.2d 686 (1994)..." (id., 118-119).

The Court found that the Order, by requiring advance approval before an employee could
comment, "is generally disfavored under First Amendment law because it ‘chills potential speech
before it happens', stating that:

"The press policies allow the agencies to determine in advance what
kind of speech will harm agency operations instead of punishing
disruptive remarks after their effect has been felt. For this reason, the
regulations ran afoul of the general presumption against prior
restraints on speech" (id., 119).

It also viewed the matter from the perspective of the reality of the relationship between
employers and employees, finding that:

"Employees who are critical of the agency will naturally hesitate to
voice their concerns if they must first ask permission from the very
people whose judgments they call into question. Only those who
adhere to the party line would view such a requirement without
trepidation" (id., 120).

In generally rejecting the possibility that speech may be disruptive, it was stated that:

"The City contends that employee speech will be permitted as long as
it will not interfere with the efficient and effective operations of the
agencies. We do not find this standard to be sufficiently definite to
limit the possibility for content or viewpoint censorship. Because the
press policies allow suppression of speech before it takes place,
administrators may prevent speech that would not actually have had
a disruptive effect. See e.g., NTEU, 513 U.S. at 475 n.21, 115 S.Ct.
at 1017 n.21 (‘Deferring to the Government's speculation about the
pernicious effects of thousands of articles and speeches yet to be
written or delivered would encroach unacceptably on the First
Amendment's protections.'). Furthermore, the standard inherently
disfavors speech that is critical of agency operations, because such
comments will necessarily seem more potentially disruptive than
comments that ‘toe[] the agency line.' Sanjour, 56 F3d at 96-97
(striking down regulation that permitted reimbursement for only those
speaking engagements consistent with the ‘mission of the agency' as
a restriction on anti-government speech).

"The challenged regulations thus implicate all of the above concerns.
By mandating approval from an employee's superiors, they will
discourage speakers with dissenting views from coming forward.
They provide no time limit for review to ensure that commentary is
not rendered moot by delay. Finally, they lack objective standards to
limit the discretion of the agency decision-maker. For these reasons
we agree with the district court that ‘ACS 101 and HRA 641 clearly
restrict the First Amendment rights of City employees..."(id., 121).

It was emphasized by the court that the harm sought to be avoided must be real, and not
merely conjectural:

"...where the government singles out expressive activity for special
regulation to address anticipated harms, the government must
‘demonstrate that the recited harms are real, not merely conjectural,
and that the regulations will in fact alleviate these harms in a direct
and material way.' NTEU 513 U.S. at 475, 115 S.Ct. at 1017 (quoting
Turner Broad Sys. Inc. v. Federal Communications Comm'n, 512
U.S. 622, 624, 114 S.Ct. 2445, 2450, 129 L.Ed.2d 497 (1994)
(plurality opinion)). Although government predictions of harm are
entitled to greater deference when used to justify restrictions on
employee speech as opposed to speech by the public, such difference
is generally accorded only when the government takes action in
response to speech which has already taken place. NTEU, 513 U.S.
at 475 n.21, 115 S.Ct. at 1017 n.21. Where the predictions of harm
are proscriptive, the government cannot rely on assertions, but must
show a basis in fact for its concerns" (id., 122).

In a key statement that essentially summarizes its decision, the Court found that:

"The executive orders reach more broadly to cover all information
regarding any agency policy or activity. They thus have the potential
to chill substantially more speech than is reasonably necessary to
protect the confidential information" (id., 123) (i.e., information that
is exempted from disclosure and which, pursuant to statute, cannot be
disclosed ).

With regard to the Mayor's Official Statement of Executive Policy, little in paragraphs (a)
through (g) of subdivision (1) could, based on the preceding analysis, be considered to be "statutorily
confidential information." In my opinion, in the context of city business, matters would be
"confidential" only on rare occasions. Those situations might involve information that is derived
from personnel records used to evaluate continuing employment or promotion of police officers or
professional firefighters pursuant to §50-a of the Civil Rights Law; they might involve attorney work
product or records subject to the attorney-client privilege. In most instances, however, there would
be no prohibition against disclosure based on a statute that forbids release of records or their
contents.

Under subdivision (2), again, certain City employees could not discuss or divulge "any
sensitive matter or information that if disclosed would disrupt the efficient and effective operation
of the City government or would impair the public officer's close working relationship with the
Mayor." That aspect of the Policy is in my view contrary to the holding rendered in Harman. It is
vague, or in the words of Harman, not "sufficiently definite"; it is prospective and "chills speech
before it happens", for it does not focus on any harm that has actually occurred. In short, it stifles
free speech in a manner that has been found to be unconstitutional. Further, although a policy can
be readily altered or revoked, an ordinance remains in effect until legislative action is taken.
Consequently, the Ordinance potentially affects numerous individuals yet to serve as City employees
or members of the Common Council.

In the course of the duties carried out by public officers and employees, any number of
subjects prohibited from being disclosed under the Executive Policy and the Ordinance are routinely
disclosed. For instance, both refer to "[m]atters or information regarding proposed, pending or
current litigation." Matters relating to litigation are frequently disclosed, and any person may
ordinarily obtain records concerning litigation from a court and in many cases from an agency.
"Matters or information regarding the preparation, grading or administration of examinations" are
also disclosed. Nevertheless, a disclosure that a new exam for plumbers' licenses is being developed
or a disclosure of an eligible list would appear to run afoul of the policy.

What if there is honest disagreement between the Mayor and a department head on an issue
of policy and the latter expresses his opinion to the news media or to a friend - would that run afoul
of the Policy, particularly if the Mayor believes that the comment impairs his relationship with the
Department head? Should the department head face the possibility of a fine or imprisonment, or
both?

What if, after an executive session, a member of the City Council believes that the session
or a portion of the session was improperly held? Would his or her disclosure of that opinion or the
substance of the matter discussed result in a violation of the Ordinance? I note, too, that the
Ordinance refers to a "properly convened executive session." Frequently executive sessions are
convened for "proper" reasons, but the public body drifts into a new subject. My hope is there will
be a member or other person present who is sufficiently knowledgeable regarding the permissible
parameters of executive session and sufficiently vigilant to suggest that the executive session should
end and that the body should return to an open meeting. But what if that does not happen? What
if the public body rejects that person's efforts to return to the open meeting? What if there is simply
an oversight and a realization after the executive session that the body should have engaged in a
discussion in public? Would disclosure of a matter that should have been discussed in public but
which was considered during a "properly convened" executive session constitute a violation of law?

I recognize that many of the questions are rhetorical. Nevertheless, in consideration of the
possibility that violation of the Policy or the Ordinance could result in the imposition of a fine and/or
imprisonment, as well as the Harman decision and the analysis that preceded my discussion of that
holding, it is my view that those enactments are inconsistent with law and would likely be found, as
in Harman, to be unconstitutional.

Lastly, while there may be no prohibition against disclosure of most of the information that
is the subject of the Policy and the Ordinance, the foregoing is not intended to suggest that 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. Further, a unilateral disclosure by a member of a public
body might serve to defeat or circumvent the principles under which those bodies are intended to
operate.

Historically, I believe that public bodies were created in 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 those bodies should not in my opinion be
unanimous in every instance; on the contrary, they should represent disparate points of view which,
when conveyed as part of a deliberative process, lead to fair and representative decision making.
Notwithstanding distinctions in points of view, the decision or consensus by the majority of a public
body should in my opinion be recognized and honored by those members who may dissent.
Disclosures made contrary to or in the absence of consent by the majority could result in unwarranted
invasions of personal privacy, impairment of collective bargaining negotiations or even interference
with criminal or other investigations. In those kinds of situations, even though there may be no
statute that prohibits disclosure, release of information could be damaging to individuals and the
functioning of government, and disclosures should in my view be cautious, thoughtful and based on
an exercise of reasonable discretion.

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

RJF:jm

cc: Hon. Joseph Griffo
Common Council
James D. Cole
Andrew Brick