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January 12, 1996

 

Mr. Harvey M. Elentuck
139-15 83 Avenue #326
Jamaica, NY 11435-1517

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. Elentuck:

I have received your letter of December 29 and the materials attached to it. You have sought my views concerning two issues that relate to the New York City Board of Education.

The first pertains to meetings of the Board in which members of the public are given an opportunity to express their views. You referred to regulations adopted by the Board relating to those meetings, and one aspect of the regulations states that: "[D]iscussion and charges relating to the competence or personal conduct of individuals will be ruled out of order at these meetings. The Board of Education cannot permit public 'trials by accusation.'" You wrote, however, that Counsel to the Board asked you not to mention the names of people identified in a written statement that you sought to make, and you questioned the propriety of precluding you from reading records, including names within them, when the records have been disclosed under the Freedom of Information Law.

In this regard, by authorizing the public to speak at meetings, I believe that the Board has, in the context of your inquiry, adopted a practice that is not required by law. Although the Open Meetings Law clearly provides the public with the right "to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy" (see Open Meetings Law, §100), the Law is silent with respect to the issue of public participation. Consequently, if a public body does not want to answer questions or permit the public to speak or otherwise participate at its meetings, I do not believe that it would be obliged to do so. On the other hand, a public body may choose to answer questions and/or permit public participation, and many do so. When a public body does permit the public to speak, I believe that it should do so based upon reasonable rules that treat members of the public equally.

While public bodies have the right to adopt rules to govern their own proceedings (see e.g., Education Law, §1709), the courts have found in a variety of contexts that such rules must be reasonable. For example, although a board of education may "adopt by laws and rules for its government and operations", in a case in which a board's rule prohibited the use of tape recorders at its meetings, the Appellate Division found that the rule was unreasonable, stating that the authority to adopt rules "is not unbridled" and that "unreasonable rules will not be sanctioned" [see Mitchell v. Garden City Union Free School District, 113 AD 2d 924, 925 (1985)]. Similarly, if by rule, a public body chose to permit certain citizens to address it for ten minutes while permitting others to address it for three, or not at all, such a rule, in my view, would be unreasonable.

The issue in this instance, in my view, is whether the Board's regulation or perhaps the means by which it is implemented, is reasonable. It appears that the Board's practice is based on provisions of the Freedom of Information and Open Meetings Laws that are intended to enable governmental entities to protect personal privacy. In the case of the former, §87(2)(b) permits an agency to withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." Section 105(1)(f) of the Open Meetings Law authorizes a public body to conduct 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..."

From my perspective, not every record that identifies an individual would, if disclosed, result in an unwarranted invasion of personal privacy. Similarly, even though a discussion by a public body might include names, that alone would not necessarily justify the holding of an executive session.

I would agree that an accusation concerning the conduct of a teacher, for example, represents the kind of situation in which a public body could reasonably preclude identification of the teacher in a statement offered at a meeting of that body. In that case, I believe that the identity of a teacher who is the subject of an unsubstantiated allegation or charge could be withheld under the Freedom of Information Law or be a proper subject for consideration in executive session. Nevertheless, if a teacher is the subject of a final determination indicating that he or she engaged in misconduct (i.e., under §3020-a of the Education Law), the determination would be a matter of public record, even though the person is named in the record. Because the record is public and because such a determination is not an accusation but rather is a finding, it would be unreasonable in my view to prohibit a public reading of that record, including the name of the subject of the determination. In other circumstances as well, a name coupled with other information may be public, and a prohibition of the utterance of the name would, in my opinion, be unreasonable. For instance, the names of all public employees, their titles and their salaries are matters of public record. I cannot envision how precluding speakers from identifying employees with their titles or salaries could be justified.

In short, it is not the name that is critical; rather, I believe that it is the name when used in conjunction with other information that should serve as the standard for permitting or perhaps prohibiting the identification of individuals during open meetings.

The second area of inquiry pertains to requests that were denied by Susan Jonides Deedy, Counsel to the Chancellor.

One request involved "All final investigative reports and statements of finding that were issued by Ed Stancik's Office, and that are physically located at 110 Livingston Street." You were informed that the records "do not exist in any one central location" and "are not maintained in a fashion that enables us to release them pursuant to your FOIL request." In short, for reasons described in previous correspondence, it appears that your request would not have "reasonably described" the records sought as required by §89(3) of the Freedom of Information Law.

The remaining request involved "litigation file cabinet 'tags'" used by individual attorneys at the Board of Education. Ms. Deedy wrote that the tags "are considered internal notations that are confidential." You contend that Ms. Deedy did not cite any statutory exemption to support her contention that the material is 'confidential.'"

I am not familiar with the notations that appear on the tags. Nevertheless, there are several grounds for denial that may be relevant, depending on the content of the notations.

In the context of the duties of an attorney employed by the Board, it is possible that the tags identify students and that the names of students would be confidential pursuant to the Family Educational Rights and Privacy Act and, therefore, §87(2)(a) of the Freedom of Information Law. Similarly, the tags could identify employees who are the subjects of disciplinary proceedings or other matters the disclosure of which would constitute an unwarranted invasion of personal privacy deniable under §87(2)(b). The tags could reflect values or opinions, i.e., by characterizing the contents of files as "important" or "unimportant", "winnable" or "unwinnable." Those kinds of notations could in my view be withheld as intra-agency material under §87(2)(g).

I refer, too, to a recent decision that might be pertinent involving access records relating to payments by a municipality to a law firm for services rendered. It was contended that the records could be withheld on the ground that they constituted attorney work product or material prepared for litigation that are exempted from disclosure by statute [see CPLR, §3101(c) and (d)]. In dealing with that claim, it was stated by the court that:

"...in order to uphold respondent's denial of the FOIL request, the Court would be compelled to conclude that the descriptive material, set forth in the law firm's monthly bills, is uniquely the product of the professional skills of respondent's outside counsel. The Court fails to see how the preparation and submission of a bill for fees due and owing, not at all dependent on legal expertise, education or training, can be 'attribute[d]...to the unique skills of an attorney' (Brandman v. Cross & Brown Co., 125 Misc.2d 185, 188 [Sup. Ct. Kings Ct. 1984]). Therefore, the Court concludes that the attorney work product privilege does not serve as an absolute bar to disclosure of the descriptive material. (See, id.).

"However, the Court is aware that, depending upon how much information is set forth in the descriptive material, a limited portion of that information may be protected from disclosure, either under the work product privilege, or the privilege for materials prepared for litigation, as codified in CPLR 3101(d)...

"While the Court has not been presented with any of the billing records sought, the Court understands that they may contain specific references to: legal issues researched, which bears upon the law firm's theories of the landfill action; conferences with witnesses not yet identified and interviewed by respondent's adversary in that lawsuit; and other legal services which were provided as part of counsel's representation of respondent in that ongoing legal action...Certainly, any such references to interviews, conversations or correspondence with particular individuals, prospective pleadings or motions, legal theories, or similar matters, may be protected either as work product or material prepared for litigation, or both" (emphasis added by the court).

The extent to which the preceding commentary may be relevant to the materials at issue is unknown to me, and rights of access would likely be dependent on the content of those materials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Mary Tucker
Bruce K. Gelbard
Susan Jonides Deedy