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October 14, 1993

 

 

Ms. Monica Getz, President
Dobbs Ferry League of Women Voters
Shadowbrook
Broadway
Irvington, NY 10533

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 Ms. Getz:

As you may be aware, Susan King has asked that I review and
offer an opinion with respect to certain provisions of code of
ethics proposed by the Village of Dobbs Ferry.

The focus of the inquiry involves the proposal as it may
relate to the Freedom of Information Law and the Open Meetings Law.
Specifically, the proposed code would state in relevant part that:

"The Village Ethics Board shall, with respect
to every complaint that it receives and all
related deliberations, findings, opinions,
recommendations and dispositions thereof:

a. hold all such matters in
confidence and not publicly reveal
them, to the fullest extent
allowable by applicable law,
including the New York State Freedom
of Information Law, as it may be
amended.

b. meet only in executive session,
closed to the public, to the fullest
extent allowed by the New York State
Open Meetings Law, as it may be
amended, and

c. render a written confidential
report of its findings, opinions and
recommendations which report will be
provided to the subject of the
investigation."

In my opinion, the language quoted above is unnecessary and
potentially in conflict with both the Freedom of Information Law
and the Open Meetings Law. In this regard, I offer the following
comments.

First, the Freedom of Information Law pertains to all agency
records, and §86(4) of that statute defines the term "record"
expansively to include:

"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."

Due to the breadth of the language quoted above, any documentation,
irrespective of its function or origin, maintained by an agency
would constitute a "record" subject to rights of access.

Second, 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.

In my view, an assertion or claim of confidentiality, unless
it is based upon a statute, is likely meaningless. When
confidentiality is conferred by a statute, records fall outside the
scope of rights of access pursuant to §87(2)(a) of the Freedom of
Information Law, which states that an agency may withhold records
that "are specifically exempted from disclosure by state or federal
statute". If there is no statute upon which an agency can rely to
characterize records as "confidential" or "exempted from
disclosure", the records are subject to whatever rights of access
exist under the Freedom of Information Law [see Doolan v.BOCES, 48
NY 2d 341 (1979); Washington Post v. Insurance Department, 61 NY 2d
557 (1984); Gannett News Service, Inc. v. State Office of
Alcoholism and Substance Abuse, 415 NYS 2d 780 (1979)]. As such,
an assertion of confidentiality without more, would not in my
opinion guarantee or require confidentiality.

Moreover, it has been held by several courts, including the
Court of Appeals, that an agency's regulations or the provisions of
a local enactment, such as an administrative code, local law,
charter or ordinance, for example, do not constitute a "statute"
[see e.g., Morris v. Martin, Chairman of the State Board of
Equalization and Assessment, 440 NYS 2d 365, 82 Ad 2d 965, reversed
55 NY 2d 1026 (1982); Zuckerman v. NYS Board of Parole, 385 NYS 2d
811, 53 AD 2d 405 (1976); Sheehan v. City of Syracuse, 521 NYS 2d
207 (1987)]. For purposes of the Freedom of Information Law, a
statute would be an enactment of the State Legislature or Congress.
Therefore, a local enactment cannot confer, require or promise
confidentiality. This not to suggest that many of the records
used, developed or acquired in conjunction with an ethics code must
be disclosed; rather, I am suggesting that those records may in
some instances be withheld in accordance with the grounds for
denial appearing in the Freedom of Information Law, and that any
local enactment that is inconsistent with that statute would be
void to the extent of any such inconsistency.

It is likely in my view that two the grounds for denial would
be particularly relevant with respect to records maintained by a
board of ethics.

Section 87(2)(b) of the Freedom of Information Law authorizes
an agency to withhold records when disclosure would result in an
unwarranted invasion of personal privacy. Although the standard
concerning privacy is flexible and may be subject to conflicting
interpretations, the courts have provided substantial direction
regarding the privacy of public employees. It is clear that public
employees enjoy a lesser degree of privacy than others, for it has
been found in various contexts that public employees are required
to be more accountable than others. With regard to records
pertaining to public employees, the courts have found that, as a
general rule, records that are relevant to the performance of a
public employee's official duties are available, for disclosure in
such instances would result in a permissible rather than an
unwarranted invasion of personal privacy [see e.g., Farrell v.
Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v.
County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978);
Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing
Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty.,
March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims,
1978); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v.
NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988);
Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk
Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d
562 (1986)]. Conversely, to the extent that records are irrelevant
to the performance of one's official duties, it has been found that
disclosure would indeed constitute an unwarranted invasion of
personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty.,
NYLJ, Nov. 22, 1977].

Several of the decisions cited above, for example, Farrell,
Sinicropi, Geneva Printing, Scaccia and Powhida, dealt with
situations in which determinations indicating the imposition of
some sort of disciplinary action pertaining to particular public
employees were found to be available. However, when allegations or
charges of misconduct have not yet been determined or did not
result in disciplinary action, the records relating to such
allegations may, in my view, be withheld, for disclosure would
result in an unwarranted invasion of personal privacy [see e.g.,
Herald Company v. School District of City of Syracuse, 430 NYS 2d
460 (1980)]. Further, to the extent that charges are dismissed or
allegations are found to be without merit, I believe that they may
be withheld.

There may also be privacy considerations concerning persons
other than employees who may be subjects of a board's inquiries.
For instance, I believe that the name of a complainant or witness
could be withheld in appropriate circumstances as an unwarranted
invasion of personal privacy.

The other provision of relevance, §87(2)(g), states that an
agency may 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. Records prepared in conjunction with an
inquiry or investigation would in my view constitute intra-agency
materials. Insofar as they consist of opinions, advice,
conjecture, recommendations and the like, I believe that they could
be withheld. Factual information would in my view be available,
except to the extent, under the circumstances, that disclosure
would result in an unwarranted invasion of personal privacy.

Lastly, as in the case of the Freedom of Information Law,
insofar as a local enactment is more restrictive concerning access
than the Open Meetings Law, I believe that it would be void.
Section 110 of the Open Meetings Law, entitled "Construction with
other laws," states in subdivision (1) that:

"Any provision of a charter, administrative
code, local law, ordinance, or rule or
regulation affecting a public body which is
more restrictive with respect to public access
than this article shall be deemed superseded
hereby to the extent that such provision is
more restrictive than this article."

Further, although the Open Meetings Law is based upon a presumption
of openness and meetings of public bodies must generally by
conducted open to the public, §105(1) of the Law specifies and
limits the grounds for entry for entry into executive session.

Relevant to the duties of a board of ethics is §105(1)(f) of
the Law, which permits a public body to 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..."

If the issue before a board of ethics involves a particular person
in conjunction with one or more of the subjects listed in
§105(1)(f), I believe that an executive session could appropriately
be held. For instance, if the issue deals with the "financial
history" of a particular person or perhaps matters leading to the
discipline of a particular person, §105(1)(f) could in my opinion
be cited for the purpose of entering into an executive session.

I also point out that a public body cannot "meet" in executive
session. Section 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. Moreover, a procedure
must be accomplished during an open meeting before an executive
session may be held. 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..."

In sum, because the Freedom of Information Law and the Open
Meetings Law, which are state statutes, provide the parameters
concerning the extent to which records and meetings must be open or
may be closed, again, I believe that specific reference in a local
enactment to the extent to which records should be withheld or
meetings closed is unnecessary, and that any such reference could
result in confusion, difficulties of interpretation and perhaps
failure to comply with state statues.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb
cc: Village Board of Trustees
Susan King