May 31, 1996
Mr. James J. Markowski
Bedford, NY 10506
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, unless otherwise indicated.
Dear Mr. Markowski:
I have received your letter of May 15. In your capacity as a member of the Bedford Central School District Board of Education, you have raised a variety of questions relating to a series of events involving the development of a voter survey to be used in the District. I note in good faith that the District's attorney, Phyllis Jaffe, contacted me soon after the receipt of your letter, and that the President of the Board, Karen Akst Schecter, has forwarded her view of the facts to me.
It is also emphasized that the Committee on Open Government is authorized to advise with respect to the Open Meetings and Freedom of Information Laws. Several of your questions, although they may involve the disclosure of information, do not pertain to those statutes. Consequently, the following comments will be restricted to issues raised by both yourself and Ms. Schecter that fall within the scope of the Committee's advisory jurisdiction.
By way of background, two District residents were designated to prepare a survey to be distributed to voters on the day of the Board elections and the budget vote. Ms. Schecter wrote that "it was understood" that the draft exit survey "was to be kept confidential until the Board reviewed it and until the voters saw it for the first time" on the day of the election. Nevertheless, the draft was given by one of those who prepared it to another resident, who in turn distributed it to other members of the community. Some considered the disclosure to be improper and the Board entered into an executive session, apparently characterized as "a specific personnel matter", to discuss whether the person who initially disclosed the draft survey should be asked to "step down." In addition, the draft survey was also reviewed and revised during an executive session.
The initial key issue is whether the Board had the authority to discuss the activities of resident who disclosed the draft in an executive session. It appears from my perspective that both you and Ms. Schecter have fallen into what I have come to call "the personnel trap." I believe that the Board had a proper basis for discussing the matter during an executive session, even though it did not involve a past, present or perhaps future District officer or employee.
As a general matter, the Open Meetings Law is based upon a presumption of openness. Stated differently, meetings of public bodies must be conducted open to the public, unless there is a basis for entry into executive session. Moreover, the 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.
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, from my perspective, the term is overused and is frequently cited in a manner that is misleading or causes unnecessary confusion. To be sure, some issues involving "personnel" may be properly considered in an executive session; others, in my view, cannot. Further, certain matters that have nothing to do with personnel may be discussed in private under the provision that is ordinarily cited to discuss personnel.
The language of the so-called "personnel" exception, §105(1)(f) of the Open Meetings Law, is limited and precise. In terms of legislative history, as originally enacted, the provision in question 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 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 at least one of the topics listed in §105(1)(f) is considered.
In the context of the situation at issue, insofar as the discussion involved a matter leading to the dismissal or removal of the person who disclosed the draft survey, I believe that there was a proper basis for conducting an executive session.
It has been advised that a motion describing the subject to be discussed as "personnel" or "specific personnel matters" 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.
It is noted that the Appellate Division, Second Department, recently confirmed the advice rendered by this office. In discussing §105(1)(f) in relation to a matter involving the establishment and functions of a position, the Court stated that:
"...the public body must identify the subject matter to be discussed (See, Public Officers Law § 105 ), and it is apparent that this must be accomplished with some degree of particularity, i.e., merely reciting the statutory language is insufficient (see, Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc 2d 303, 304-305). Additionally, the topics discussed during the executive session must remain within the exceptions enumerated in the statute (see generally, Matter of Plattsburgh Publ. Co., Div. of Ottaway Newspapers v City of Plattsburgh, 185 AD2d §18), and these exceptions, in turn, 'must be narrowly scrutinized, lest the article's clear mandate be thwarted by thinly veiled references to the areas delineated thereunder' (Weatherwax v Town of Stony Point, 97 AD2d 840, 841, quoting Daily Gazette Co. v Town Bd., Town of Cobleskill, supra, at 304; see, Matter of Orange County Publs., Div. of Ottaway Newspapers v County of Orange, 120 AD2d 596, lv dismissed 68 NY 2d 807).
"Applying these principles to the matter before us, it is apparent that the Board's stated purpose for entering into executive session, to wit, the discussion of a 'personnel issue', does not satisfy the requirements of Public Officers Law § 105 (1) (f). The statute itself requires, with respect to personnel matters, that the discussion involve the 'employment history of a particular person" (id. [emphasis supplied]). Although this does not mandate that the individual in question be identified by name, it does require that any motion to enter into executive session describe with some detail the nature of the proposed discussion (see, State Comm on Open Govt Adv Opn dated Apr. 6, 1993), and we reject respondents' assertion that the Board's reference to a 'personnel issue' is the functional equivalent of identifying 'a particular person'" [Gordon v. Village of Monticello, 620 NY 2d 573, 575; 207 AD 2d 55 (1994)].
A second involves the propriety of discussing the content of the survey in private. Based on a review of the grounds for entry into executive session, I do not believe that there would have been a basis for reviewing or revising the draft survey during such a session. I point out in a related vein 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).
Although the draft survey was not sought under the Freedom of Information Law, you asked whether it was a "confidential document." In this regard, an assertion or claim of confidentiality, unless it is based upon a statute, is generally meaningless. When confidentiality is conferred by a statute, an act of the State Legislature or Congress, records fall outside the scope of rights of access pursuant to §87(2)(a) of the Freedom of Information Law, which, again, 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 view serve to enable an agency to withhold a record. In this instance, there would have been no statute specifying that the record in question could be characterized as confidential. Rather, it is likely in my view that the record would have been available, if it had been requested, under the Freedom of Information Law.
As you may be aware, that statute pertains to agency records, and §86(4) defines the term "record" broadly 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."
Based on the foregoing, when a document is maintained by or produced for an agency, it constitutes a "record" subject to rights conferred by the Freedom of Information Law.
In §86(3) of the Freedom of Information Law, "agency" is defined to mean:
"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."
As such, a school district or school board would clearly constitute an "agency". However, the citizens who prepared the draft survey are not agency employees, and it has been found that the mere giving of advice, even about governmental matters is not itself a governmental function" [Goodson-Todman Enterprises, Ltd. v. Town Board of Milan, 542 NYS 2d 373, 374, 151 AD 2d 642 (1989); Poughkeepsie Newspapers v. Mayor's Intergovernmental Task Force, 145 AD 2d 65, 67 (1989); see also New York Public Interest Research Group v. Governor's Advisory Commission, 507 NYS 2d 798, aff'd with no opinion, 135 AD 2d 1149, motion for leave to appeal denied, 71 NY 2d 964 (1988)]. Therefore, the citizens would not have performed a governmental function, and they would not be part of an agency. If that is so, the only ground for denial in the Freedom of Information Law of likely relevance would in my opinion be inapplicable.
In brief, 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 provision to which I alluded, §87(2)(g), permits an agency to withhold "inter-agency or intra-agency materials", depending upon their contents. From my perspective, since the citizens are apparently not part of an agency, the draft survey would not consist of either inter-agency or intra-agency material. If that is so, §87(2)(g) could not be asserted as a basis for denial. Moreover, based on the information provided, none of the other grounds for denial would be applicable.
I hope that the foregoing serves to clarify both the Open Meetings and Freedom of Information Laws, and that I have been of assistance.
Robert J. Freeman
cc: Karen Akst Schecter, President