June 17, 2010
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.
This is in response to your request for our opinion regarding application of the Freedom of Information Law. You wrote that you submitted a request for records pursuant to the Freedom of Information Law concerning negotiations between the Highland Teachers Association and Highland Central School District, which had reached an impasse. The School District denied your request “as the facts leading to an officially declared impasse were expressed orally.” Moreover, the School District made it clear that if such records did exist, the School District would not release them, for disclosure would be detrimental to the contract negotiations.
In this regard, 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 (k) of the Law.
With respect to the contract negotiations, it would appear that the only ground for denial of significance is §87(2)(c), which enables an agency to withhold records to the extent that disclosure would "impair present or imminent contract awards or collective bargaining negotiations." In our opinion, the key word in the provision quoted above is "impair", and the issue involves the extent to which disclosure would preclude the School District from engaging in an optimal agreement on behalf of the taxpayers.
In a case involving negotiations between a New York City agency and the Trump organization, the court referred to an opinion that we prepared and adopted the reasoning offered therein, stating that:
"Section 87(2)(c) relates to withholding records whose release could impair contract awards. However, here this was not relevant because there is no bidding process involved where an edge could be unfairly given to one company. Neither is this a situation where the release of confidential information as to the value or appraisals of property could lead to the City receiving less favorable price.
"In other words, since the Trump organization is the only party involved in these negotiations, there is no inequality of knowledge between other entities doing business with the City" [Community Board 7 v. Schaffer, 570 NYS 2d 769, 771 (1991); Aff'd 83 AD 2d 422; reversed on other grounds 84 NY 2d 148 (1994)].
When there is no “inequality of knowledge” between or among the parties to negotiations, or if records have been shared or exchanged by the parties, it is questionable and difficult to envision how disclosure would "impair present or imminent contract awards or collective bargaining negotiations", (see Community Board 7, supra). Because the only two parties to the negotiations of the teachers’ contract were the School District and the teachers’ union, neither would gain an advantage or be disadvantaged vis à vis the other in regard to the release of information, for both parties are aware of the other party’s positions shared. Similarly, when negotiations have ended and an agreement has been reached, no longer would disclosure impair the negotiations. In that situation we believe that records exchanged between or shared by an agency and a public employee union during negotiations may not be withheld.
Finally, and perhaps more importantly, when an agency indicates that it does not maintain a record, an applicant for the record may seek a certification to that effect. Section 89(3) of the Freedom of Information Law provides in part that, in such a situation, on request, an agency “shall certify that it does not have possession of such record or that such record cannot be found after diligent search.” It is emphasized that when a certification is requested, an agency “shall” prepare the certification; it is obliged to do so.
We have that we have been of assistance.
Camille S. Jobin-Davis
cc: Linda Steinberg