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May 3, 1993

 

 

Hon. John J. Howland
Councilman
Town of Henrietta
67 Tumbleweed Drive
Henrietta, NY 14535

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 Councilman Howland:

I have received your letter of April 16 and the materials
attached to it.

You have raised the following questions concerning the Freedom
of Information Law and the Open Meetings Law:

"1. If the Town of Henrietta is having a
Public Works Committee Meeting, what
requirements for 'Notice of Meetings' must be
followed if the whole meeting will be
conducted under executive session?

2. If a discussion of a publically funded
Drainage Report can be taken into 'executive
session' at a public works committee meeting
just because a number of residents have filed
a notice of claim against the Town due to
flood damages, suffered by them. The drainage
study was a direct result and response to the
flooding that occurred.

3. Can the general observations and
recommendations part of the report and the
report itself be denied under the Freedom of
Information Act?"

In addition, you have sought and opinion concerning public access
to a management study prepared for the Town of Henrietta by a
consultant, and the extent to which the study can be discussed in
executive session.

In this regard, I offer the following comments.

First, in my opinion, notice must be given prior to a meeting
of a public body even if the entire substance of the meeting may be
conducted in executive session. I believe that every meeting must
be convened as an open meeting, for §102(3) of the Open Meetings
Law defines the phrase "executive session" to mean a portion of an
open meeting during which the public may be excluded.
Consequently, it is clear that an executive session is not separate
and distinct from an open meeting, but rather that it is a part of
an open meeting. Moreover, the Open Meetings Law requires that a
procedure be accomplished, during an open meeting, before a public
body may enter into an executive session. Specifically, §105(1)
states in relevant part that:

"Upon a majority vote of its total membership,
taken in an open meeting pursuant to a motion
identifying the general area or areas of the
subject or subjects to be considered, a public
body may conduct an executive session for the
below enumerated purposes only..."

As such, a motion to conduct an executive session must include
reference to the subject or subjects to be discussed, and the
motion must be carried by majority vote of a public body's
membership before such a session may validly be held. The ensuing
provisions of §105(1) specify and limit the subjects that may
appropriately be considered during an executive session.
Therefore, a public body may not conduct an executive session to
discuss the subject of its choice.

Further, the Open Meetings Law requires that notice be given
to the news media and posted prior to every meeting. Specifically,
§104 provides that:

"1. Public notice of the time and place of a
meeting scheduled at least one week prior
thereto shall be given to the news media and
shall be conspicuously posted in one or more
designated public locations at least
seventy-two hours before each meeting.

2. Public notice of the time and place of
every other meeting shall be given, to the
extent practicable, to the news media and
shall be conspicuously posted in one or more
designated public locations at a reasonable
time prior thereto.

3. The public notice provided for by this
section shall not be construed to require
publication as a legal notice."

Stated differently, if a meeting is scheduled at least a week in
advance, notice of the time and place must be given to the news
media and to the public by means of posting in one or more
designated public locations, not less than seventy-two hours prior
to the meeting. If a meeting is scheduled less than a week in
advance, again, notice of the time and place must be given to the
news media and posted in the same manner as described above, "to
the extent practicable", at a reasonable time prior to the meeting.
Therefore, if, for example, there is a need to convene quickly, the
notice requirements can generally be met by telephoning the local
news media and by posting notice in one or more designated
locations.

With respect to your second question, one of the grounds for
entry into executive session is §105(1)(d), which permits a public
body to conduct an executive session to discuss "proposed, pending
or current litigation". In construing the language quoted above,
it has been held that:

"The purpose of paragraph d is 'to enable is
to enable a public body to discuss pending
litigation privately, without baring its
strategy to its adversary through mandatory
public meeting' (Matter of Concerned Citizens
to Review Jefferson Val. Mall v. Town Bd. of
Town of Yorktown, 83 AD 2d 612, 613, 441 NYS
2d 292). The belief of the town's attorney
that a decision adverse to petitioner 'would
almost certainly lead to litigation' does not
justify the conducting of this public business
in an executive session. To accept this
argument would be to accept the view that any
public body could bar the public from its
meetings simply be expressing the fear that
litigation may result from actions taken
therein. Such a view would be contrary to
both the letter and the spirit of the
exception" [Weatherwax v. Town of Stony Point,
97 AD 2d 840 841 (1983)].

Therefore, unless a public body discusses its litigation strategy,
it does not appear that §105(1)(d) could justifiably be cited to
conduct an executive session. Even though notices of claim might
have been filed, a discussion of the report that does not include
consideration of the Town's litigation strategy relating to those
claims would not in my opinion qualify for entry into executive
session.

Third, with regard to access to the reports to which you
referred, it is noted initially that, 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 (i) of the
Law.

Based upon the judicial interpretation of the Freedom of
Information Law, records prepared for an agency by a consultant may
be treated as "intra-agency" materials that fall within the scope
of §87(2)(g). That provision permits an agency to withhold records
that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or
data;

ii. instructions to staff that affect the
public;

iii. final agency policy or determinations;
or

iv. external audits, including but not
limited to audits performed by the comptroller
and the federal government..."

It is noted that the language quoted above contains what in effect
is a double negative. While inter-agency or intra-agency materials
may be withheld, portions of such materials consisting of
statistical or factual information, instructions to staff that
affect the public, final agency policy or determinations or
external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently,
those portions of inter-agency or intra-agency materials that are
reflective of opinion, advice, recommendation and the like could in
my view be withheld.

In a discussion of the issue of consultant reports that you
cited, the Court of Appeals stated that:

"Opinions and recommendations prepared by
agency personnel may be exempt from disclosure
under FOIL as 'predecisional materials,
prepared to assist an agency decision
maker***in arriving at his decision' (McAulay
v. Board of Educ., 61 AD 2d 1048, aff'd 48 NY
2d 659). Such material is exempt 'to protect
the deliberative process of government by
ensuring that persons in an advisory role
would be able to express their opinions freely
to agency decision makers (Matter of Sea Crest
Const. Corp. v. Stubing, 82 AD 2d 546, 549).

"In connection with their deliberative
process, agencies may at times require
opinions and recommendations from outside
consultants. It would make little sense to
protect the deliberative process when such
reports are prepared by agency employees yet
deny this protection when reports are prepared
for the same purpose by outside consultants
retained by agencies. Accordingly, we hold
that records may be considered 'intra-agency
material' even though prepared by an outside
consultant at the behest of an agency as part
of the agency's deliberative process (see,
Matter of Sea Crest Constr. Corp. v. Stubing,
82 AD 2d 546, 549, supra; Matter of 124 Ferry
St. Realty Corp. v. Hennessy, 82 AD 2d 981,
983)" [Xerox Corporation v. Town of Webster,
65 NY 2d 131, 132-133 (1985)].

Based upon the foregoing, a report prepared by a consultant
for an agency may be withheld or must be disclosed based upon the
standard as in cases in which records are prepared by the staff of
an agency. It is emphasized that the Court in Xerox specified that
the contents of intra-agency materials determine the extent to
which they may be available or withheld, for it was held that:

"While the reports in principle may be exempt
from disclosure, on this record - which
contains only the barest description of them -
we cannot determine whether the documents in
fact fall wholly within the scope of FOIL's
exemption for 'intra-agency materials,' as
claimed by respondents. To the extent the
reports contain 'statistical or factual
tabulations or data' (Public Officers Law
section 87[2][g][i], or other material subject
to production, they should be redacted and
made available to the appellant" (id. at 133).

Therefore, a record prepared by a consultant for an agency would be
accessible or deniable, in whole or in part, depending on their
contents. Insofar as the reports in question consist of
statistical or factual information, for example, they would be
available under §87(2)(g)(i); insofar as they consist of opinions
or recommendations they may be withheld.

I emphasize that although records or perhaps portions of
records may be withheld, there is no requirement that they must be
withheld. The Court of Appeals, the state's highest court, has
confirmed that the exceptions to rights of access are permissive,
rather than mandatory, 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, with or without identifying
details, if it so chooses" [Capital Newspapers
v. Burns, 67 NY 2d 562, 567 (1986)].

Consequently, even if it is determined that a record may be
withheld under §87(2)(g), for example, an agency would have the
authority to disclose the record.

It is also emphasized that the grounds for withholding records
under the Freedom of Information Law and the grounds for entry into
executive session are separate and distinct, and that they are not
necessarily consistent. In some instances, although a record might
be withheld under the Freedom of Information Law, a discussion of
that record might be required to be conducted in public under the
Open Meetings Law, and vice versa. Further, in a decision in which
the issue was whether discussions occurring during an executive
session 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 case of the management study, even though some aspects
of the study might be deniable under the Freedom of Information
Law, to comply with the Open Meetings Law, the Board may be
required to discuss most aspects of the study in public, for there
may be no applicable basis for conducting an executive session.
Further, if a discussion of the study must occur in public, there
may be little reason for withholding the study.

While the study apparently deals with personnel-related
issues, it is noted that the word "personnel" appears nowhere in
the Open Meetings Law. While one of the grounds for entry into
executive session often relates to personnel matters, the language
of that provision is precise. In its original form, §105(1)(f) of
the Open Meetings Law permitted a public body to enter into an
executive session to discuss:

"...the medical, financial, credit or
employment history of any person or
corporation, or matters leading to the
appointment, employment, promotion, demotion,
discipline, suspension, dismissal or removal
of any person or corporation..."

Under the language quoted above, public bodies often convened
executive sessions to discuss matters that dealt with "personnel"
generally, tangentially, or in relation to policy concerns.
However, the Committee consistently advised that the provision
was intended largely to protect privacy and not to shield matters
of policy under the guise of privacy.

To attempt to clarify the Law, the Committee recommended a
series of amendments to the Open Meetings Law, several of which
became effective on October 1, 1979. The recommendation made by
the Committee regarding §105(1)(f) was enacted and now states that
a public body may enter into an executive session to discuss:

"...the medical, financial, credit or
employment history of a particular person or
corporation, or matters leading to the
appointment, employment, promotion, demotion,
discipline, suspension, dismissal or removal
of a particular person or corporation..."
(emphasis added).

Due to the insertion of the term "particular" in §105(1)(f), I
believe that a discussion of "personnel" may be considered in an
executive session only when the subject involves a particular
person or persons, and only when one or more of the topics listed
in §105(1)(f) are considered.

When a discussion concerns matters of policy, I do not believe
that §105(1)(f) could be asserted, even though the discussion
relates to "personnel". For example, if a discussion involves
staff functions or the duties inherent in a position or job title,
the issue in my view would involve matters of policy. On the other
hand, insofar as a discussion focuses upon a "particular person" in
conjunction with that person's performance, i.e., how well or
poorly he or she has performed his or her duties, an executive
session could in my view be appropriately held. As stated
judicially, "it would seem that under the statute matters related
to personnel generally or to personnel policy should be discussed
in public for such matters do not deal with any particular person"
(Doolittle v. Board of Education, Supreme Court, Chemung County,
October 20, 1981).

In addition, due to the insertion of the term "particular" in
§105(1)(f), it has been advised that a motion describing the
subject to be discussed as "personnel" is inadequate, and that the
motion should be based upon the specific language of §105(1)(f).
For instance, a proper motion might be: "I move to enter into an
executive session to discuss the employment history of a particular
person (or persons)". Such a motion would not in my opinion have
to identify the person or persons who may be the subject of a
discussion. By means of the kind of motion suggested above,
members of a public body and others in attendance would have the
ability to know that there is a proper basis for entry into an
executive session. Absent such detail, neither the members nor
others may be able to determine whether the subject may properly be
considered behind closed doors.

I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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