NY.gov Portal State Agency Listing

 

May 26, 1994

 

 

Mr. Gary Hayes
Box 400
181 Main Street
Middleburgh, NY 12122

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 Mr. Hayes:

I have received your letters of April 29 and May 20, as well
as a variety of related materials.

You have sought an advisory opinion concerning a denial of
your request for the "datebook" of the Superintendent of the
Middleburgh Central School District concerning a particular date.
The Superintendent has contended that it is not subject to the
Freedom of Information Law, and you wrote that he stated at a
meeting that it is his "personal datebook". It is your view that
the datebook relates to school business and "will help to clarify
his sworn testimony". In addition, you have questioned the
propriety of executive sessions held by the Board of Education and
forwarded minutes of a number of meetings. An example of minutes
as they relate to the issue is the following statement appearing in
minutes: "Executive Session to discuss negotiations, personal
matters, recommendations of CSE and other appropriate areas".

In this regard, I offer the following comments.

First, §86(4) of the Freedom of Information Law 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."

The Court of Appeals has construed the definition as broadly
as its specific language suggests. The first such decision that
dealt squarely with the scope of the term "record" involved
documents pertaining to a lottery sponsored by a fire department.
Although the agency contended that the documents did not pertain to
the performance of its official duties, i.e., fighting fires, but
rather to a "nongovernmental" activity, the Court rejected the
claim of a "governmental versus nongovernmental dichotomy" [see
Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581
(1980)] and found that the documents constituted "records" subject
to rights of access granted by the Law. Moreover, the Court
determined that:

"The statutory definition of 'record' makes
nothing turn on the purpose for which it
relates. This conclusion accords with the
spirit as well as the letter of the statute.
For not only are the expanding boundaries of
governmental activity increasingly difficult
to draw, but in perception, if not in
actuality, there is bound to be considerable
crossover between governmental and
nongovernmental activities, especially where
both are carried on by the same person or
persons" (id.).

Additionally, in another decision rendered by the Court of
Appeals, the Court focused on an agency claim that it could "engage
in unilateral prescreening of those documents which it deems to be
outside of the scope of FOIL" and found that such activity "would
be inconsistent with the process set forth in the statute" [Capital
Newspapers v. Whalen, 69 NY 2d 246, 253 (1987)]. The Court
determined that:

"...the procedure permitting an unreviewable
prescreening of documents - which respondents
urge us to engraft on the statute - could be
used by an uncooperative and obdurate public
official or agency to block an entirely
legitimate request. There would be no way to
prevent a custodian of records from removing a
public record from FOIL's reach by simply
labeling it 'purely private.' Such a
construction, which would thwart the entire
objective of FOIL by creating an easy means of
avoiding compliance, should be rejected" (id.,
254).

Similarly, in a case involving notes taken by the Secretary to the
Board of Regents that he characterized as "personal" in conjunction
with a contention that he took notes in part "as a private person
making personal notes of observations...in the course of" meetings,
the court cited the definition of "record" and determined that the
notes did not consist of personal property but rather were records
subject to rights conferred by the Freedom of Information Law
[Warder v. Board of Regents, 410 NYS 2d 742, 743 (1978)].

In short, based upon the language of the Law and its judicial
interpretation, I believe that the datebook would constitute a
record subject to rights conferred by the Freedom of Information
Law.

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. From my
perspective, two of the grounds for denial are relevant to an
analysis of rights of access.

Section 87(2)(g) enables 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 my view, the record in question would constitute "intra-agency" material. However, it would likely consist of purely
factual information accessible under §87(2)(g)(i), unless a
different ground for denial may be asserted.

Also relevant is §87(2)(b) of the Freedom of Information Law,
which permits an agency to withhold records to the extent that
disclosure would constitute "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. Second, 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].

In my opinion, schedules indicating appointments, meetings and
the like in which the a public employee has engaged are relevant to
the performance of that person's official duties. Therefore, to
the extent that the record in question pertains to the performance
of the Superintendent's official duties, I believe that disclosure
would result in a permissible rather than an unwarranted invasion
of personal privacy with respect to the public employee who
maintains or is the subject of the datebook.

I direct your attention to a decision that described the
intent and utility of the Freedom of Information Law.
Specifically, in Capital Newspapers v. Burns, the Court of Appeals,
in considering the routine functioning of government held 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"
(supra, 565-566).

Perhaps the most direct precedent is Kerr v. Koch (Supreme
Court, New York County, NYLJ, February 1, 1988). A newspaper
reporter was granted access to the "public schedules" of New York
City's former Mayor, Edward Koch. However, other more detailed
"private" schedules were withheld. In that decision, the court
posed the following question: "Will granting access to the Mayor's
appointment calendars without redaction urged by respondents as
proper, result in an unwarranted invasion of personal privacy?" In
response to the question, it was stated that:

"Avoidance of disclosure under FOIL cannot be
had by simply placing in documents the
unilateral description, 'private' as this
would '*** thwart the entire objective of FOIL
by creating an easy means of avoiding
compliance.'"

Further, in granting access to the records, the Court found that:

"It appears that some private appointment
calendar material has been produced for
petitioner, with redactions that reduce the
worthiness of those documents.

"There is no suggestion of scandal attached to
those who are associates of the Mayor, whether
they be servants of the public or private
individuals. Accordingly there is nothing
unwarranted, excessive or unjustifiable in
revealing the names of those with whom the
Mayor had appointments from time to time. As
a public person invested with a public trust,
he should be accountable for his
associations."

"The passion for secrecy found in the
redaction of names from private schedules of
the respondents, where luncheon meetings have
been billed to the Mayor's expense account, is
not justified under the circumstances
described here. Mixed, as they appear to be
with public documents and records, all kept by
the agency of the Mayor's Office, the private
schedules are vulnerable under the Freedom of
Information Law. Otherwise, liberal
construction of FOIL is forfeited and the
exemptions in the law are at the mercy of a
narrow interpretation."

If an entry in an appointment book is unrelated to the
performance of one's official duties, for example, as in the cases
of a reference to an appointment with a doctor or spouse, I believe
that those portions of the record could be deleted on the ground
that disclosure would constitute an unwarranted invasion of
personal privacy. Further, if reference is made to a student or
the parent of a student, I believe that privacy considerations
arise not with respect to the public employee acting in the
performance of his or her duties, but rather with respect to the
parent or the student. To the extent that the record includes
reference to students or their parents, I believe that those
references could be deleted prior to public disclosure.

With respect to executive sessions, 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 total
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. Based
upon the language of the Open Meetings Law and its judicial
interpretation, motions to conduct executive sessions citing the
subjects to be considered as "personnel", "litigation" or
"negotiations", for example, without additional detail are
inadequate. The use of those kinds of terms alone do not provide
members of public bodies or members of the public who attend
meetings with enough information to know whether a proposed
executive session will indeed be properly held.

For instance, although it is used frequently, the term
"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. By
way of background, 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 section 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, such as the
manner in which public money will be expended or allocated, or when
the issue bears upon a group of employees, I do not believe that
§105(1)(f) could be asserted, even though the discussion relates to
"personnel".

Moreover, 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 [see Doolittle v. Board of Education, Supreme Court,
Chemung County, July 21, 1981; also Becker v. Town of Roxbury,
Supreme Court, Chemung County, April 1, 1983]. 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.

Another ground for entry into executive session frequently
cited relates to "litigation". Again, that kind of minimal
description of the subject matter to be discussed would be
insufficient to comply with the Law. The provision that deals with
litigation is §105(1)(d) of the Open Meetings Law, which permits a
public body to enter into 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 meetings' (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)].

Based upon the foregoing, I believe that the exception is intended
to permit a public body to discuss its litigation strategy behind
closed doors, rather than issues that might eventually result in
litigation. Since legal matters or possible litigation could be
the subject or result of nearly any topic discussed by a public
body, an executive session could not in my view be held to discuss
an issue merely because there is a possibility of litigation, or
because it involves a legal matter.

With regard to the sufficiency of a motion to discuss
litigation, it has been held that:

"It is insufficient to merely regurgitate the
statutory language; to wit, 'discussions
regarding proposed, pending or current
litigation'. This boilerplate recitation does
not comply with the intent of the statute. To
validly convene an executive session for
discussion of proposed, pending or current
litigation, the public body must identify with
particularity the pending, proposed or current
litigation to be discussed during the
executive session" [Daily Gazette Co. , Inc.
v. Town Board, Town of Cobleskill, 44 NYS 2d
44, 46 (1981), emphasis added by court].

Similarly, with respect to "negotiations", the only ground for
entry into executive session that mentions that term is §105(1)(e).
That provision permits a public body to conduct an executive
session to discuss "collective negotiations pursuant to article
fourteen of the civil service law." Article 14 of the Civil
Service Law is commonly known as the "Taylor Law", which pertains
to the relationship between public employers and public employee
unions. As such, §105(1)(e) permits a public body to hold
executive sessions to discuss collective bargaining negotiations
with a public employee union.

In terms of a motion to enter into an executive session held
pursuant to §105(1)(e), it has been held that:

"Concerning 'negotiations', Public Officers
Law section 100[1][e] permits a public body to
enter into executive session to discuss
collective negotiations under Article 14 of
the Civil Service Law. As the term
'negotiations' can cover a multitude of areas,
we believe that the public body should make it
clear that the negotiations to be discussed in
executive session involve Article 14 of the
Civil Service Law" [Doolittle, supra].

In sum, I believe that a motion to enter into an executive
session must be sufficiently detailed to enable Board members and
the public to know that the Board is acting in compliance with the
Law.

Lastly, when the Board focuses on specific students, of likely
relevance is a provision of federal law, the Family Educational
Rights and Privacy Act (20 U.S.C. §1232g). In brief, that Act is
applicable to educational agencies or institutions that participate
in funding programs administered by the U.S. Department of
Education. As such, it applies to virtually all public educational
institutions, as well as many private colleges and universities.
With regard to records, as a general matter, "education records"
identifiable to a particular student or students are considered
confidential, unless the parents of the students consent to
disclosure. Concurrently, the parents enjoy rights of access to
education records pertaining to their children.

As the Family Educational Rights and Privacy Act relates to
the Open Meetings Law, §108(3) of the Open Meetings Law exempts
from its provisions "any matter made confidential by federal or
state law". Consequently, information discussed by a board of
education derived from education records of a student would be
confidential and could be considered outside the scope of the Open
Meetings Law.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: Board of Education
Walter J. Doherty, Superintendent