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December 27, 1994

 

 

Mr. Kenneth Hoch
26 Winthrop Drive
Cortlandt Manor, NY 10566

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.

Dear Mr. Hoch:

I have received your letter of November 11 and the materials attached to it.

You wrote that the Lakeland Central School District Board of Education "has negotiated a tuitioning contract for high school students from neighboring Putnam Valley" but "refused to divulge the cost of this contract to Lakeland residents" because disclosure "would compromise our negotiations for the future." You have questioned the District's ability to withhold that information. In addition, you wrote that the Board "conducted all discussion of this contract in executive session."

You have sought my views on the matter. In this regard, I offer the following comments.

First, 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.

The only ground for denial of relevance concerning access to the contract is §87(2)(c), which permits an agency to withhold records to the extent that disclosure would "impair present or imminent contract awards or collective bargaining negotiations." As I understand the matter, an agreement was reached and a contract was signed. If that is so, neither §87(2)(c) nor any other ground for denial could justifiably be asserted. In short, the contract represents the culmination of negotiations and does not, at this juncture, relate to "present or imminent contract awards." Consequently, I believe that the contract would be available from either of the districts subject to the agreement.

It is also noted that the state's highest court has on many occasions construed the Freedom of Information Law broadly. In one such decision, the Court of Appeals 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" [Capital Newspapers v. Burns, 67 NY 2d 562, 565-566 (1986]).

Based on the foregoing, it is clear in my view that the contract in question must be disclosed under the Freedom of Information Law.

With respect to the meetings during which the contract was discussed, the Open Meetings Law, like the Freedom of Information Law, is based on a presumption of openness. Paragraphs (a) through (h) of §105(1) of the Open Meetings Law specify the subjects that may appropriately be considered during execution sessions. Therefore, a public body may not conduct an executive session to discuss the subject of its choice; on the contrary, the subject matter that may properly be discussed during executive sessions is limited.

None of the grounds for entry into executive session deal in general with contractual matters, contract discussions or negotiations. The only provision that touches directly on contract negotiations is §105(1)(e), which authorizes a public body to enter into an executive session regarding "collective negotiations pursuant to article fourteen of the civil service law." Article 14 of the Civil Service Law, commonly known as the "Taylor Law," pertains to the relationship between public employers and public employee unions. As such, §105(1)(e) deals with collective bargaining negotiations between a public employer and a public employee union. That provision is clearly unrelated to the subject matter of the executive sessions in question, and it does not appear that any of the other grounds for entry into executive session would have been relevant to the matter at issue. I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Board of Education