December 7, 1998
Mr. John McAndrew
53 Fowler Street
Port Jervis, NY 12771-2019
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
Dear Mr. McAndrew:
I have received your letter of November 2 and the correspondence attached to it.
According to the materials, you have initiated several grievances against the Port Jervis School District. Although the contract between the District and the Teachers' Association states that "All hearings shall be and remain confidential", District officials have identified you as the subject of hearings at open meetings. You have asked whether the District is required to identify the subject of a hearing prior to entry into executive session or may be prohibited from naming you publicly as a grievant involved in a hearing.
In this regard, first, it has consistently been advised that a public body is not required
to identify a person who may be the subject of a discussion in an executive session. In my
view, a motion for entry into executive session must provide sufficient detail to enable the
public to know whether an executive session will appropriately be conducted. For instance,
if a motion indicates that the Board will discuss a "particular person" in conjunction with one
or more of the topics described in §105(1)(f) of the Open Meetings Law, that would be
sufficient to comply with law. Section 105(1)(f) 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 to the
appointment, employment, promotion, demotion, discipline,
suspension, dismissal or removal of a particular person or corporation..."
Second, however, neither the Freedom of Information Law nor the Open Meetings Law would prohibit the disclosure of your identity as a grievant during an open meeting. While the Open Meetings Law authorizes public bodies to conduct executive sessions in circumstances described in paragraphs (a) through (h) of §105(1), there is no requirement that an executive session be held even though a public body has right to do so. The introductory language of §105(1), which prescribes a procedure that must be accomplished before an executive session may be held, indicates that a public body "may" conduct an executive session only after having completed that procedure. If, for example, a motion is made to conduct an executive session for a valid reason, and the motion is not carried, the public body could either discuss the issue in public, or table the matter for discussion in the future.
Similarly, the Freedom of Information Law is permissive. Although an agency may withhold
records in accordance with the grounds for denial appearing in §87(2), the Court of Appeals, the State's highest court, has held that the agency is not obliged to do so and may choose to disclose. As stated in that unanimous decision: "...while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provision contains permissive rather than mandatory language, and it is within the agency's discretion to disclose such records, with or without identifying details, if it so chooses" [Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)].
Lastly, in many instances, I believe that outcome of a hearing, including the name of
the public employee involved, must be disclosed under the Freedom of Information Law, and
that it has been held that a promise or assertion of confidentiality cannot be upheld, unless a
statute specifically confers confidentiality. In Gannett News Service v. Office of Alcoholism
and Substance Abuse Services [415 NYS 2d 780 (1979)], a state agency guaranteed
confidentiality to school districts participating in a statistical survey concerning drug abuse.
The court determined that the promise of confidentiality could not be sustained, and that the
records were available, for none of the grounds for denial appearing in the Freedom of
Information Law could justifiably be asserted. In a decision rendered by the Court of
Appeals, it was held that a state agency's:
"long-standing promise of confidentiality to the intervenors is irrelevant to whether the requested documents fit within the Legislature's definition of 'record' under FOIL. The definition does not exclude or make any reference to information labeled as 'confidential' by the agency; confidentiality is relevant only when determining whether the record or a portion of it is exempt..." [Washington Post v. Insurance Department, 61 NY 2d 557, 565 (1984)].
In a different context, in Geneva Printing Co. and Donald C. Hadley v. Village of
Lyons (Supreme Court, Wayne County, March 25, 1981), a public employee charged with
misconduct and in the process of an arbitration hearing engaged in a settlement agreement
with a municipality. One aspect of the settlement was an agreement to the effect that its terms would remain confidential. Notwithstanding the agreement of confidentiality, which
apparently was based on an assertion that "the public interest is benefited by maintaining
harmonious relationships between government and its employees", the court found that no
ground for denial could justifiably be cited to withhold the agreement. On the contrary, it was determined that:
"the citizen's right to know that public servants are held accountable when they abuse the public trust outweighs any advantage that would accrue to municipalities were they able to negotiate disciplinary matters with its employee with the power to suppress the terms of any settlement".
In short, insofar as the terms of a collective bargaining agreement are inconsistent with the Freedom of Information Law, I believe that they would be unenforceable and void.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Education