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OML-AO-3397

January 10, 2002

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

I have received your letters and a variety of related materials in which you raised a series of questions relating to the propriety of discussing various real property transactions during executive sessions and procedures regarding the implementation of the Freedom of Information Law, particularly in relation to the use of a prescribed request form.

I am responding to you concurrently in an effort to be fair, and I reiterate comments offered recently in a conversation with Mr. Fountaine and other Village officials: specifically, that when individuals contact this office, the information that they offer is accepted in good faith and with an assumption that the information is accurate. Nevertheless, it is acknowledged that the truth or the reality relative to a given situation is often based on perception; one person's view of facts or the effects of certain actions may differ from that of another person, even when both have acquired the same information and heard the same presentations. Over the course of years, there have been many instances in which the perceptions of members of a various boards have differed, and absent the ability to conduct investigations, it is impossible to ascertain which version of reality may be more accurate.

According to Ms. Moses, there are several incidents concerning the propriety of executive sessions held by the Board of Trustees. The first relates to a situation in which a developer owns a twenty-two acre parcel, which was the subject of a proposal offered several years ago. The proposal was dropped and a moratorium, which has since ended, precluded development of the parcel. Adjacent to it is a fifteen acre parcel owned by the Village, and she wrote that the Village Attorney suggested that the Board sell the property to the developer and that the discussions on the matter have occurred in executive sessions. The second apparently involves the same parcel and a dispute over whether the parcel is a park, and that, too, has been considered in executive sessions. The remaining issue relates to a parcel that the Village Administrator would like to purchase from the Town, but the Town, to date, has shown no interest in engaging in that transaction. An offer was made, but again, the issue was discussed in executive session, as are similar matters, such as "the selling of fire halls, which we own."

Ms. Moses indicated that she is "uncomfortable talking about these issues in executive session because of possible litigation."

Mr. Fountaine suggested that I do not have all the information on the subject and referred to the absence of any response from me concerning an email sent to this office on December 24. I was the only person on staff present in the office that day, and I do not recall having received that communication. Further, there is no reference to it in our log of incoming mail. I note, too, that, in an effort to be fair, requests for opinions are answered in the order of receipt. Ms. Moses' communication was received on December 18, and I had not yet prepared a response when Mr. Fountaine telephoned this office. Again, I am considering trustee Moses' comments and those offered by Mr. Fountaine together in an effort to be fair and balanced in this response.

In his email letter of December 24 (faxed to me on January 7), Mr. Fountaine wrote that the Board has conducted executive sessions to discuss "real estate issues" as follows:

"...a proposed sale of property to include offering price and all details accocitted [sic] with such.

"The village has been discussing the possible sale of a village owned parcel of land to a developer who's land adjoins the village owned property. This sale is being considered as a negotiation with the developer to lower the density of the project he is proposing to build. The village has already been sued by the developer over this project. A neighborhood group is soliciting funds and has hired a lawyer to sue the village in relation to the possible sale of this village owned property. It is under these conditions that the village board was going to discuss this particular piece of village owned property. This appears to me to satisfy item h of section 105 of the open meetings law."

In a second letter addressed to me on January 7, Mr. Fountaine wrote in relevant part that:

"For the complete record, Clover development has sued the village via an Article 78 over this project. A group of citizens (probably the ones who called you have hired an attorney (Mr. Walling). Ms. Moses letter is not totally factual. The Clover Article 78 was filed but dismissed by the Judge before trial...

"You should know that we have on numerous occasions discussed the Clover project in open session. We have only gone into executive session when we are discussing litigation strategy related to the project. As I mentioned above the developer has already sued us once and has said they may resort to legal action should we not be able to reach some type of agreement on this project. Additionally, the citizen group that has raised funds and hired a lawyer also gives the board concern about litigation over the property. In fact Ms. Moses acknowledges such in her letter when she states that the citizen group is going to pursue whether the property is a park or not. To openly discuss this would give Clover information on what the board strategy would be should an agreement over the sale of the property not be concluded with Clover. The Village Attorney's information to the village board about whether this is a part or not is attorney-client information. He should be allowed to discuss this with the board due to the already actual litigation by the developer and their publicly announced intent to litigate as seen on the citizen group flyer and confirmed by Ms. Moses.

"In regard to the other property for which Ms. Moses mentioned my name, here is the rest of the story. The citizens electric committee suggested that we consider generating our own power should we form a municipal utility. I brought this to the village board who discussed this is executive session due to the fact the property is on the open market and the village in the same discussion decided 1 - should we consider making an offer and 2 - how much should we offer. This was the extent of the discussion in executive session about this property. To publically [sic] discuss the consideration and sale price of a piece of real estate should clearly fall within executive session."

He added in a second letter of January 7 that:

"...the discussion concerning the particular piece of real estate was already in litigation and we were discussing the potential sales price of several other village owned parcels that we planned on placing on the market. To discuss potential sales prices of property in open session before listing them for sale is ridiculous."

Notwithstanding the foregoing, Mr. Fountaine also wrote that "we have on numerous occasions discussed the Clover project in open session." In this regard, as you are likely aware, the Open Meetings Law is based on a presumption of openness. Stated differently, meetings of public bodies must be conducted open to the public, except to the extent that an executive session may properly be conducted in accordance with paragraphs (a) through (h) of §105(1). Consequently, a public body, such as a village board of trustees, cannot enter into an executive session to discuss the subject of its choice.

From my perspective, the grounds for entry into executive session are based on the need to avoid some sort of harm that would arise by means of public discussion, and that is so with respect to the grounds for entry into executive session that appear to be relevant in relation to the matters that you described.

First, with respect to real property transactions, §105(1)(h) of the Open Meetings Law permits a public body to enter into executive session to discuss:

"the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof."

In my opinion, the language quoted above, like the other grounds for entry into executive session, is based on the principle that public business must be discussed in public unless public discussion would in some way be damaging, either to an individual, for example, or to a government in terms of its capacity to perform its functions appropriately and in the best interest of the public. It is clear that §105(1)(h) does not permit public bodies to conduct executive sessions to discuss all matters that may relate to the transaction of real property; only to the extent that publicity would "substantially affect the value of the property" can that provision validly be asserted.

A key question, in my view, involves the extent to which information relating to possible real property transactions has become known to the public. The more that is known, the less likely it is that publicity would have an impact on the value of a parcel or would in some way damage the interests of Village taxpayers. I note that the language of §105(1)(h) does not refer to negotiations per se or the impact of publicity upon negotiations relating to a parcel; rather its proper assertion is limited to situations in which publicity would have a substantial effect on the value of the property. It has been advised, for example, that when a municipality is seeking to purchase a parcel and the public is unaware of the location or locations under consideration, it is possible if not likely that premature disclosure or publicity would indeed substantially affect the value of the property. In that kind of situation, publicity might result in speculation or offers from others, thereby precluding the municipality from reaching an optimal price on behalf of the taxpayers. However, when details concerning a potential real property transaction, such as the location and potential uses of the property, are known to the public, publicity would have a lesser effect or impact on the value of the parcel. Again, the more that is known to the public, the less likely it is that publicity would affect the value of a parcel.

In short, the language of §105(1)(h) is limited and precise, for it focuses solely on the impact of publicity on the value of a parcel. I do not have specific knowledge regarding the extent to which information pertaining to the transactions to which you made reference have become known by or available to the public. Nevertheless, based on the terms of that provision, only in those instances in which "publicity would substantially affect the value" of a parcel of real property could an executive session properly be held.

The other ground for entry into executive session of relevance to the matters considered would be §105(1)(d), which permits a public body to enter into an executive session to discuss "proposed, pending or current litigation". Based on judicial decisions, the scope of the so-called litigation exception is narrow. As stated judicially:

"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 Yorketown, 83 AD d. 612, 613, 441 N.S. d. 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 by 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 d. 840, 841 (1983)].

In view of the foregoing, the exception is intended to permit a public body to discuss its litigation strategy behind closed doors, so as not to divulge its strategy to its adversary, who may be present with other members of the public at the meeting. I note, too, that the Concerned Citizens decision cited in Weatherwax involved a situation in which a town board involved in litigation met with its adversary in an executive session to discuss a settlement. The court determined that there was no basis for entry into executive session; the ability of the board to conduct a closed session ended when the adversary was permitted to attend.

Based on the judicial construction of §105(1)(d), that exception would not apply if a party with whom the Village is negotiating is present or if the discussion deals with the substance of an issue that might result in litigation. In my view, only to the extent that a public body discusses its litigation strategy may that exception be properly invoked.

A second vehicle that might permit a meeting to be held in private involves "exemptions", and §108 of the Open Meetings Law contains three exemptions. When an exemption applies, the Open Meetings Law does not, and the requirements that would operate with respect to executive sessions are not in effect. Stated differently, to discuss a matter exempted from the Open Meetings Law, a public body need not follow the procedure imposed by §105(1) that relates to entry into an executive session. Further, although executive sessions may be held only for particular purposes, there is no such limitation that relates to matters that are exempt from the coverage of the Open Meetings Law.

Of possible relevance is §108(3), which exempts from the Open Meetings Law:

"...any matter made confidential by federal or state law."

When an attorney-client relationship has been invoked, it is considered confidential under §4503 of the Civil Practice Law and Rules. Therefore, if an attorney and client establish a privileged relationship, the communications made pursuant to that relationship would in my view be confidential under state law and, therefore, exempt from the Open Meetings Law.

In terms of background, it has long been held that a municipal board may establish a privileged relationship with its attorney [People ex rel. Updyke v. Gilon, 9 NYS 243 (1889); Pennock v. Lane, 231 NYS 2d 897, 898 (1962)]. However, such a relationship is in my opinion operable only when a municipal board or official seeks the legal advice of an attorney acting in his or her capacity as an attorney, and where there is no waiver of the privilege by the client.

In a judicial determination that described the parameters of the attorney-client relationship and the conditions precedent to its initiation, it was held that:

"In general, 'the privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services (iii) assistance in some legal proceedings, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client'" [People v. Belge, 59 AD 2d 307, 399, NYS 2d 539, 540 (1977)].

Insofar as the Board seeks legal advice from its attorney and the attorney renders legal advice, I believe that the attorney-client privilege may validly be asserted and that communications made within the scope of the privilege would be outside the coverage of the Open Meetings Law. Therefore, even though there may be no basis for conducting an executive session pursuant to §105 of the Open Meetings Law, a private discussion might validly be held based on the proper assertion of the attorney-client privilege pursuant to §108. For example, legal advice may be requested even though litigation or possible litigation is not an issue. In that case, while the litigation exception for entry into executive session would not apply, there may be a proper assertion of the attorney- client privilege.

I note that the mere presence of an attorney does not signify the existence of an attorney- client relationship; in order to assert the attorney-client privilege, the attorney must in my view be providing services in which the expertise of an attorney is needed and sought. Further, often at some point in a discussion, the attorney has stopped giving legal advice and a public body may begin discussing or deliberating independent of the attorney. When that point is reached, I believe that the attorney-client privilege has ended and that the body should return to an open meeting.

The remaining issue relates to the use of a form prescribed by the Village to be used by those requesting records under the Freedom of Information Law. As indicated by phone, it has consistently been advised that a person seeking records cannot be compelled to complete a form devised by an agency. Mr. Fountaine questioned the basis for that advice.

By way of background, §89(1) of the Freedom of Information Law requires the Committee on Open Government to promulgate rules and regulations governing the procedural implementation of the law, and the Committee has done so (see 21 NYCRR Part 1401). In turn, §87(1)(a) requires the "governing body of each public corporation" to promulgate rules and regulations "pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article", "this article" being the Freedom of Information Law.

That statute in §89(3) and the regulations promulgated by the Committee (§1401.5) require that an agency respond to a request that reasonably describes the record sought within five business days of the receipt of a request. The regulations indicate that "an agency may require that a request be made in writing or may make records available upon oral request" [§1401.5(a)]. Neither the Law nor the regulations refers to, requires or authorizes the use of standard forms. Accordingly, it has consistently been advised that any written request that reasonably describes the records sought should suffice and that a failure to complete a form prescribed by an agency cannot serve to delay a response or deny a request for records.

A delay due to a failure to use a prescribed form might result in an inconsistency with the time limitations imposed by the Freedom of Information Law. For example, assume that an individual requests a record in writing from an agency and that the agency responds by directing that a standard form must be submitted. By the time the individual submits the form, and the agency processes and responds to the request, it is probable that more than five business days would have elapsed, particularly if a form is sent by mail and returned to the agency by mail. Therefore, to the extent that an agency's response granting, denying or acknowledging the receipt of a request is given more than five business days following the initial receipt of the written request, the agency, in my opinion, would have failed to comply with the provisions of the Freedom of Information Law.

While the Law does not preclude an agency from developing a standard form, as suggested earlier, I do not believe that a failure to use such a form can be used to delay a response to a written request for records reasonably described beyond the statutory period. It has been advised that an agency may ask that a standard form be utilized so long as it does not prolong the time limitations discussed above. For instance, a standard form could be completed by a requester while his or her written request is timely processed by the agency. In addition, an individual who appears at a government office and makes an oral request for records could be asked but, in my view, cannot be required to complete the standard form as his or her written request.

I agree that the Village's form is similar with respect to the sample request letter in the Committee on Open Government's publication, "Your Right to Know." The sample letter is intended to enable the public to submit an appropriate request by letter and to avoid the necessity of seeking or using a form prescribed by an agency.

I hope that the foregoing serves to clarify the provisions of the Open Meetings and Freedom of Information Laws and that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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