July 15, 2009
FROM: Camille S. Jobin-Davis, Assistant 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 information presented in your correspondence.
We are in receipt of your request for an advisory opinion concerning rights conferred by the Freedom of Information Law with respect to access to a tentative contract reached by a board of education and its teachers’ union. You submitted material from the New York State School Boards Association, and Mr. Tim Kremer, Executive Director, advised against disclosure in order to avoid “a potentially endless cycle of offers, public anger and retrenchment” due to the likelihood that the public would not typically have “the ability to fully assess the value of various parts” of a contractual offer. Jay Worona, General Counsel, advised that in the absence of an express agreement between the parties prior to the negotiating process, “neither party is free to go public without the other’s permission.” In this regard, we offer the following.
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.
The only ground for denial of relevance is §87(2)(c), which enables agencies to withhold records to the extent that disclosure would "impair present or imminent contract awards or collective bargaining negotiations." From our perspective, the key word in the exception is "impair", and the question involves whether or the extent to which disclosure of a record characterized as a "tentative agreement" would impair collective bargaining negotiations.
We know of no judicial decision rendered under the Freedom of Information Law that directly deals with the issue.
In other contexts, it has been advised that §87(2)(c) is intended to ensure that government agencies are not placed at a disadvantage at the bargaining table and to ensure that there is a "level playing field." For instance, if a teachers' association requested records from a school district indicating the district's collective bargaining strategy, the issues that it considers to be important or minor, or the parameters reflective of how much or little it would accept, disclosure would place the district at a disadvantage and the negotiations would be unfair and unbalanced. In that kind of situation, it has been advised that disclosure would indeed impair collective negotiations and that the records may be withheld. Similarly, when an agency has sought to sell real property, it has been held that premature disclosure of the agency's appraisal of the property could be withheld under §87(2)(c) [see Murray v. Troy Urban Renewal Agency, 56 NY 2d 888 (1982)]. In that situation, if a potential buyer knew of the figure that an agency would be willing to accept, there would likely be little capacity on the part of the agency to negotiate effectively.
In both kinds of situations described above, there would be an inequality of knowledge. In the illustration concerning collective bargaining, the teachers' association would not know or have the right to know of the contents of the records indicating a school district's strategy in negotiations. In the appraisal situation, the person seeking that record would be unfamiliar with its contents and, as suggested above, premature disclosure would enable a potential purchaser to gain knowledge in a manner unfair to other bidders and possibly to the detriment of an agency and, therefore, the public. Disclosure in both instances would provide knowledge to the recipients that might effectively prevent an agency from engaging in an agreement that is most beneficial to taxpayers.
If there is no inequality of knowledge between or among the parties to negotiations, and if records have been shared or exchanged by the parties, it is questionable whether disclosure would impair contract awards or collective bargaining negotiations (see Community Board 7 of Borough of Manhattan v. Schaffer, 570 NYS 2d 769, affirmed 83 AD 2d 422; reversed on unrelated grounds, 84 NY 2d 148 ). In Community Board 7, the request involved materials exchanged between a New York City agency and the Trump organization in conjunction with negotiations between those two entities. The court rejected a contention that §87(2)(c) could be applied because there was "no bidding process involved where an edge could be unfairly given to one company" and "since the Trump organization is the only party involved these negotiations, there is no inequality of knowledge between the parties" (id., 771). Based on the holding in Community Board 7, it might be contended that since a copy of a tentative agreement is maintained by both the school district and the teachers' association, there is no inequality of knowledge regarding the content of that document and that, therefore, disclosure would not impair the negotiations. Contrarily, while the only formal or official parties to the negotiations are the school district and the teachers' association, it might also be contended that the public in general may be influential or have an adverse impact in relation to the negotiations, even though the public is not directly involved.
Although our experience with the Taylor Law is limited, it is our impression that tentative agreements are negotiated by designated representatives and can be rejected or approved by the union membership or the board. The parties, as we understand it, can set “ground rules” for the negotiations, including an agreement to hold negotiations in executive session pursuant to §105(1)(e) of the Open Meetings Law. If an agency were to disclose a tentative agreement, it is also our understanding that a union could file what is known as “an improper practice charge” pursuant to §209(1)(d) of the Taylor Law. That provision states that
“It shall be an improper practice for public employer or its agents deliberately.... (d) to refuse to negotiate in good faith with the duly recognized or certified representatives of its public employees”
Similarly, pursuant to the Freedom of Information Law, the issue would be whether disclosure of a tentative agreement would in fact impair collective bargaining negotiations, and the board’s capacity to demonstrate to a court how or the extent to which disclosure would do so. Once a tentative agreement, copies of which are in possession of both parties to the negotiation, have been distributed to scores or hundreds of union members, we do not believe that the document can be characterized as secret. An agreement by the parties to keep the document in question secret would be valid only to the extent that so doing can be justified pursuant to law, and the ability of the public “to fully assess the value” of a tentative agreement is, in our view, irrelevant.
As indicated earlier, there is no judicial decision to which we can refer that would serve to clearly resolve this matter; however, it is emphasized that the courts have consistently interpreted the Freedom of Information Law in a manner that fosters maximum access. As stated by the Court of Appeals more than decade ago:
"To be sure, the balance is presumptively struck in favor of disclosure, but in eight specific, narrowly constructed instances where the governmental agency convincingly demonstrates its need, disclosure will not be ordered (Public Officers Law, section 87, subd 2). Thus, the agency does not have carte blanche to withhold any information it pleases. Rather, it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the courts for in camera inspection, to exempt its records from disclosure (see Church of Scientology of N.Y. v. State of New York, 46 NY 2d 906, 908). Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld" [Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)]."
In another decision rendered by the Court of Appeals, it was held that:
"Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, Farbman & Sons v. New York City, 62 NY 2d 75, 80 (1984); and Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)].
Moreover, in the same decision, in a statement regarding the intent and utility of the Freedom of Information Law, it was found that:
"The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v New York City Health and Hosps. Corp., 62 NY 2d 75, 79). The statute, enacted in furtherance of the public's vested and inherent 'right to know', affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information 'to make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of government officers" (id., 565-566).
On behalf of the Committee on Open Government, we hope that this is helpful to you.
cc: Timothy G. Kremer