June 27, 1997
Hon. Frank Karl, Supervisor
Hon. John Martino, Councilman
Town of Franklin
P.O. Box 73
Vermontville, NY 12989
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 Supervisor Karl and Councilman Martino:
I have received your letters which are respectively dated June 11 and June 9, concerning issues relating to meetings of the Town Board of the Town Franklin. In brief, as I view the matter, the issues involve the propriety of executive sessions held to discuss "Town Board conduct" and a resolution adopted by the Town Board expressing its policy that "the conversation and/or correspondence that is part of Executive Sessions, except that which results in Board action at the Executive Session, shall be deemed confidential and not otherwise disclosed."
I would conjecture that the Board's policy is based upon §805-a of the General Municipal Law, which states in subdivision (1)(b) that "no municipal officer or employee shall...disclose confidential information acquired by him in the course of his official duties or use such information to further his personal interests." The problem in my view involves the meaning of the term "confidential." From my perspective, "confidential" has a narrow and precise technical meaning. For records or information to be validly characterized as confidential, I believe that such a claim must be based upon a statute that specifically confers or requires confidentiality. Stated differently, an act of Congress of the State Legislature must forbid disclosure in order to characterize information as confidential.
While a variety of subjects may properly to discussed during executive sessions and numerous records or portions thereof may validly be withheld under the Freedom of Information Law, the ability to exclude the public from a meeting or withhold records does not necessarily represent or signify a requirement of confidentiality. I note that both the Open Meetings Law and the Freedom of Information Law are permissive. Under §105 of the former, a public body, such as a town board, may enter into executive session to discuss one or more of the subjects appearing in paragraphs (a) through (h) of subdivision (1); there is no requirement that those subjects be discussed in executive session. Moreover, as you are aware, in order to conduct an executive session, a motion to do so must be made and carried by a majority vote of the total membership of a public body. If such a motion does not carry, even though a public body might have the authority to discuss an issue in executive session, it would not have the obligation to do so. Similarly, under the Freedom of Information Law, §87(2) provides that an agency may withhold records in accordance with the grounds for denial of access that follow. The State's highest court has found that an agency may choose to disclose records even though it has the ability to deny access [see Capital Newspapers v. Burns, 67 NY 2d 562 (1986)].
In sum, as a general rule, even though discussions by a public body may be conducted in private and certain records may justifiably be withheld, the matters considered might not be "confidential", but rather beyond the scope of public rights of access. In a case in which the issue was whether discussions occurring during an executive session held 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). While §805-a of the General Municipal Law may be useful for providing guidance, for the reasons described above, I do not believe that the use of the term "confidential" is entirely clear.
Second, §63 of the Town Law provides in part that a town board "may determine the rules of its procedure." I believe that so long as a rule is reasonable, it is valid. From my perspective, the policy expressed in the resolution concerning confidentiality is essentially a rule. Whether it is fully enforceable or valid is questionable. I point out that the grounds for withholding records under the Freedom of Information Law and the grounds for entry into executive session under the Open Meetings Law are not necessarily consistent. There may be situations in which a record could justifiably be withheld under the Freedom of Information Law, but a discussion of the record would have to occur in public because there is no basis for entry into executive session, and vice versa. For example, if a town employee transmits a memorandum in which he or she offers an opinion or recommendation concerning a change in policy (i.e., that business hours at Town Hall should be changed), that person's written opinion could be withheld as intra-agency material under §87(2)(g) of the Freedom of Information Law. However, discussions regarding the policy must be conducted in public, for there would be no basis for entry into executive session. In that situation, while the record could properly be withheld, the meeting about the content of the record would be required to be open to the public. Again, for that reason, the use of the term "confidential" may be misleading, difficult to interpret and lead to unforeseen results.
Notwithstanding the foregoing, it appears that the intent of the policy is to ensure that the best interests of the Town's taxpayers are served. While there may be no legal prohibition against disclosure of the information acquired during executive sessions or records that could be withheld, that is not intended to suggest that such disclosures would be uniformly appropriate or ethical. Obviously, the purpose of an executive session is to enable members of public bodies to deliberate, to speak freely and to develop strategies in situations in which some degree of secrecy is permitted. Similarly, the grounds for withholding records under the Freedom of Information Law relate in most instances to the ability to prevent some sort of harm. In both cases, inappropriate disclosures could work against the interests of a public body as a whole and the public generally. Further, a unilateral disclosure by a member of a public body might serve to defeat or circumvent the principles under which those bodies are intended to operate. Historically, I believe that public bodies were created to order to reach collective determinations, determinations that better reflect various points of view within a community than a single decision maker could reach alone. Members of boards should not in my opinion be unanimous in every instance; on the contrary, they should represent disparate points of view which, when conveyed as part of a deliberative process, lead to fair and representative decision making. Nevertheless, notwithstanding distinctions in points of view, the decision or consensus by the majority of a public body should in my opinion be recognized and honored by those members who may dissent. Disclosure made contrary to or in the absence of consent by the majority could result in unwarranted invasions of personal privacy, impairment of collective bargaining negotiations or even interference with criminal or other investigations. In those kinds of situations, even though there may be no statute that prohibits disclosure, release of information could be damaging to individuals and the functioning of government.
Third, with respect to the ability to conduct an executive session to discuss the conduct of the Board, I direct your attention to §105(1)(f). That provision permits a public body to enter into executive session to discuss:
"the medical, financial, credit or employment history of a particular person or corporation, or matters leading the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation..."
If, for example, a discussion pertains to the possible "removal" of a particular person, i.e., a member of the Town Board, to that extent, I believe that an executive session could properly be withheld.
Lastly, I note that an executive session cannot be held in advance of a meeting and that, in a technical sense, an executive session cannot be scheduled prior to a meeting. As you are likely aware, the phrase "executive session" is defined in §102(3) of the Open Meetings Law to mean a portion of an open meeting during which the public may be excluded. As such, an executive session is not separate and distinct from a meeting, but rather is a portion of an open meeting. The Law also contains a procedure that must be accomplished during an open meeting before an executive session may be held. 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 indicated in the language quoted above, a motion to enter into an executive session must be made during an open meeting and include reference to the subject or subjects to be considered during the executive session.
Based on the foregoing, it has been consistently advised that a public body cannot schedule or conduct an executive session in advance of a meeting, because a vote to enter into an executive session must be taken at an open meeting during which the executive session is held.
I hope that I have been of assistance.
Robert J. Freeman