July 18, 2000
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
I have received your letter of June 12, which reached this office on June 19. You
questioned the propriety of "retreats" held by the Hilton Central School District Board of
Education. Those gatherings, according to your letter, are not open to the public, and the
agenda pertaining to one such retreat indicated that its focus would involve "roles and
responsibilities of the President and Vice President (transition) and board committees."
You asked whether "this type of retreat [is] allowed under the Open Meetings Law",
particularly in view of your belief that "decisions made during this retreat will affect how the
board operates...and clarify the roles and responsibilities of board committees", whether
records of the retreat should be made available under the Freedom of Information Law, and whether Board members are "free to discuss with the public details of what was talked about or decided at the retreat."
In this regard, I offer the following comments.
First, the Open Meetings Law applies to meetings of public bodies, and a board of education clearly constitutes a public body required to comply with that statute. Section 102(1) of the Open Meetings Law defines the term "meeting" to mean "the official convening of a public body for the purpose of conducting public business". It is emphasized that the definition of "meeting" has been broadly interpreted by the courts. In a landmark decision rendered in 1978, the Court of Appeals found that any gathering of a quorum of a public body for the purpose of conducting public business is a "meeting" that must be convened open to the public, whether or not there is an intent to take action and regardless of the manner in which a gathering may be characterized [see Orange County Publications v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)].
Inherent in the definition and its judicial interpretation is the notion of intent. If there
is an intent that a majority of a public body will convene for the purpose of conducting public
business, such a gathering would, in my opinion, constitute a meeting subject to the requirements of the Open Meetings Law.
I point out that the decision rendered by the Court of Appeals was precipitated by contentions made by public bodies that so-called "work sessions" and similar gatherings held for the purpose of discussion, but without an intent to take action, fell outside the scope of the Open Meetings Law. In discussing the issue, the Appellate Division, whose determination was unanimously affirmed by the Court of Appeals, stated that:
"We believe that the Legislature intended to include more than
the mere formal act of voting or the formal execution of an
official document. Every step of the decision-making process,
including the decision itself, is a necessary preliminary to formal action. Formal acts have always been matters of public record and the public has always been made aware of how its officials have voted on an issue. There would be no need for this law if this was all the Legislature intended. Obviously, every thought, as well as every affirmative act of a public
official as it relates to and is within the scope of one's official duties is a matter of public concern. It is the entire decision-making process that the Legislature intended to affect
by the enactment of this statute" (60 AD 2d 409, 415).
The court also dealt with the characterization of meetings as "informal," stating that:
"The word 'formal' is defined merely as 'following or according with established form, custom, or rule' (Webster's Third New Int. Dictionary). We believe that it was inserted to safeguard the rights of members of a public body to engage in ordinary social transactions, but not to permit the use of this safeguard as a vehicle by which it precludes the application of the law to gatherings which have as their true purpose the discussion of the business of a public body" (id.).
Based upon the direction given by the courts, when a majority of a public body gathers to discuss public business, in their capacities as members of the body, any such gathering, in my opinion, would constitute a "meeting" subject to the Open Meetings Law.
From my perspective, a retreat that dealt with the roles and responsibilities of Board officers and committees constituted a "meeting" that should have been conducted open to the public in accordance with the Open Meetings Law and preceded by notice given pursuant to §104 of that statute.
Second, if indeed decisions were made, I believe that they would have been made in a
manner inconsistent with law. Stated differently, a public body has the authority to make
decisions only at meetings held in compliance with the Open Meetings Law. Further, if
decisions were made involving policy, i.e., regarding the duties and functions of officers and
committees, I believe that those issues should have been discussed in public, for there would have been no basis for conducting an executive session (see §105), and that any action must be memorialized in minutes.
Assuming that the retreat should have been open to the public and decisions were made, minutes should have been prepared pursuant to §106 of the Open Meetings Law, which provides what might be characterized as minimum requirements concerning the contents of minutes and states in relevant part that:
"1. Minutes shall be taken at all open meetings of a public
body which shall consist of a record or summary of all
motions, proposals, resolutions and any other matter formally
voted upon and the vote thereon...
3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session."
Based upon the foregoing, although minutes must be prepared and made available within two weeks, it is clear that minutes need not consist of a verbatim account of every comment that was made.
If other records of the proceedings were prepared, such as notes or summaries, they would be subject to rights of access conferred by the Freedom of Information Law. That statute pertains to agency records, and §86(4) defines the term "record" to mean:
"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."
In view of the breadth of the definition of "record", notes or summaries, for example, would
fall within the scope of rights of access.
The Freedom of Information Law is based on a presumption of access; all agency
records are accessible, except to the extent that they may be withheld in accordance with one
or more of the grounds for denial appearing in paragraphs (a) through (i) of §87(2). In my
view, one of the grounds for denial would be pertinent in ascertaining rights of access to
summaries or notes. Specifically, §87(2)(g) enables an agency to deny access to records that: "are inter-agency or intra-agency materials which are not:
i. statistical or factual tabulations or data;
ii. instructions to staff that affect the public;
iii. final agency policy or determinations; or
iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."
It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.
To the extent that notes or summaries consist of a factual rendition of what transpired,
I believe that they would be available. Again, if action was taken, minutes, in my opinion,
must be prepared indicating the nature of the action and the vote of the members.
Lastly, I am unaware of any statute that would prohibit Board members from discussing the events that occurred during a retreat. Even when information might have been obtained during an executive session properly held or from records marked "confidential", I note that the term "confidential" in my view 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.
For instance, if a discussion by a board of education concerns a record pertaining to a
particular student (i.e., in the case of consideration of disciplinary action, an educational
program, an award, etc.), the discussion would have to occur in private and the record would have to be withheld insofar as public discussion or disclosure would identify the student. As you may be aware, the Family Educational Rights and Privacy Act (20 USC §1232g) generally prohibits an educational agency from disclosing education records or information derived from those records that are identifiable to a student, unless the parents of the student consent to disclosure. In the context of the Open Meetings Law, a discussion concerning a student would constitute a matter made confidential by federal law and would be exempted from the coverage of that statute [see Open Meetings Law, §108(3)]. In the context of the Freedom of Information Law, an education record would be specifically exempted from disclosure by statute in accordance with §87(2)(a). In both contexts, I believe that a board of education, its members and school district employees would be prohibited from disclosing, because a statute requires confidentiality. Again, however, no statute of which I am aware would confer or require confidentiality with respect to the kinds of issues described in your correspondence.
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).
In short, I believe that Board members are free to share details of the retreat with the
public, especially since it appears that the retreat constituted a "meeting" that should have
been held open to the public.
In an effort to enhance compliance with and understanding of open government laws, a copy of this opinion will be sent to the Board of Education.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Education