June 26, 2009
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.
I have received your letter and hope that you will accept my apologies for the delay in response.
You wrote that you “requested the original negotiating proposals and subsequent counter proposals for the 2009 Collective Bargaining Agreement between the GNL and GNL Staff Association be made available for public review.” The GNL is the Great Neck Library. The request was denied, and you wrote that the GNL Board contended that:
“...it is not required to divulge proposals and counter proposals to the staff association negotiation team as there is an exclusion within the FOIL for records pertaining to the collective bargaining negotiations process. That exclusion exists to protect the interest of the agency on sensitive matters that pertain to the ability to successful [sic] negotiate with employees.”
Although there is an exception to rights of access to records in the Freedom of Information Law that relates to collective bargaining negotiations, I do not believe that it may properly be asserted with respect to the situation as you described it. In this regard, I offer the following comments.
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 (j) of the Law.
Many of the exceptions are designed in a way and include language pertaining to the likelihood that disclosure would result in some manner of harm or detriment. That is so, in my view, with regard to the exception pertinent to the matter. Specifically, §87(2)(c) of the Freedom of Information Law permits an agency to withhold records or portions thereof when disclosure “would impair present or imminent contract awards or collective bargaining negotiations.”
From my perspective, when collective bargaining negotiations have ended and an agreement has been reached and approved, no longer are negotiations “present or imminent”. Moreover, following the approval of a collective bargaining agreement, disclosure in my opinion would not “impair” the collective bargaining process. In short, that process in that circumstance has ended. When that is so, I do not believe that §87(2)(c) or any other exception to rights of access may properly be asserted to deny access to the records at issue.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Directors