June 11, 2007
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 facts presented in your correspondence.
I have received your letter and apologize for the delay in response. You referred to a situation in which a tentative agreement had been disseminated to 630 teachers, but in which it was contended that public disclosure of that document “is still a dangerous practice as a PERB lawsuit could result...” You have asked for my views on that subject and “background on Sunshine laws.”
In this regard, so-called “sunshine laws” were enacted in the United States, in my view, in response to the Watergate scandal and the need to guarantee the public with the right to know what the government is doing. By the early 1980's, each state had enacted some sort of open records and open meetings law. Each state’s law is different, and few states have created agencies similar to the Committee on Open Government in New York. The general thrust of sunshine laws is that all government records or meetings of government bodies are presumed to be open to the public, unless disclosure or public discussion would in some way result in harm, perhaps to an individual in terms of his/her privacy, to the government in terms of its ability to serve and carry out its duties in a manner beneficial to the public, or on occasion, to a commercial entity in relation to its competition.
With respect to the possibility of a lawsuit, I am not an expert concerning PERB’s practices or the “Taylor Law”, the series of statutes in the Civil Service Law that focus on the relationship between public employers and public employee unions. In considering disclosure of a tentative agreement, the provision in the Freedom of Information Law of primary significance, §87(2)(c), authorizes an agency, such as a school district, to deny access to records to the extent that disclosure would “impair present or imminent contract awards or collective bargaining negotiations.” In short, when disclosure would create unfairness in the contracting or collective bargaining process and give an advantage to a party while disadvantaging the other or others, it is likely that disclosure would “impair” process and that records or portions of records may be withheld. For instance, if a school district is required to disclose records indicating its collective bargaining strategy to a union, it would be placed at a disadvantage at the bargaining table, and disclosure in that instance would “impair” the process, to the detriment of the taxpayers.
In the situation that you described, school officials, union leaders and 630 teachers all would have access to or possession of the same documentation. That being so, because there would be no inequality of the knowledge of the content of the documentation, I do not believe that it could validly be contended that disclosure would “impair...collective bargaining negotiations.” I note that the Taylor Law includes provisions concerning “improper employer practices” and states in part in §209-a(1) of the Civil Service that “It shall be an improper practice for a public employer or its agents deliberately...to interfere with, restrain or coerce public employees in the exercise of their rights guaranteed in section two hundred two for the purpose of depriving them os such rights...” Section 202 deals with the right of employees to join and participate in employee organizations. Again, while I am not an expert with respect to the Taylor Law, it appears doubtful that disclosure of a document known to both parties to the negotiations and widely disseminated would constitute an improper practice.
I hope that I have been of assistance.