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October 31, 2000

OML-AO-3222

The staff of the Committee on Open Government is authorized to issue advisory opinions.
The ensuing staff advisory opinion is based solely upon the facts presented in your
correspondence, unless otherwise indicated.

Dear Mr. Norden:

I have received your letter of September 20, as well as the materials relating to it. You expressed concern that officials of the Sullivan West School District may have "deliberately misrepresented the budget to the voters and may have violated New York's Freedom of Information Law and Open Meetings Law in the process."

By way of background, you indicated that last year the Delaware Valley, Jeffersonville-Youngsville and Narrowsburg Central School Districts merged into what is now the Sullivan West Central School District. Following its election, the Board of Education "held several executive sessions about the budget which resulted in their approval and presentation to the voters..." Among the materials is a memorandum sent to the Board by Mr. Martin Handler of the Education Department that cites a "work document that was used to build the proposed budget", which you also enclosed. The memorandum makes reference to "the budget presented at the workshop...in the 3-part public document format as required by law" and states further that:

"To meet the legal requirements for the three-part document, some of the codes are split between the three components. In addition, we allocated the salary amounts across the appropriate salary codes and benefit codes. Our goal was to insure that the amount built into the budget for negotiation purposes was not readily available to the associations we will be bargaining with."

The memorandum states that "the additions representing adjustments to salaries [are] for the
former Delaware Valley & Narrowsburg districts", specifies that the proposed figures are
"for [the Board's] review and are open for discussion in executive session" and that "all this
information is ‘CONFIDENTIAL' " (emphasis in the memorandum) You added that "no
negotiation [had been] scheduled as of the memo date." The "additions representing
adjustments" total approximately $537,000.

The "work document" containing that information, which you obtained "from an anonymous source", was requested and the portions of that record at issue were withheld by the District pursuant to §87(2)(c) of the Freedom of Information Law. You wrote that the
documentation provided to voters by the District indicated that "the total combined salaries
[would be] only $8,657 more than the sum of the previous separate budgets" and that,
therefore, the documentation presented to the voters included "deceptive information." It is
your view that because "the salary additions were ‘hidden' in the budget", those xpenditures
will diminish the District's ability to meet its operating costs in the future.

In consideration of the foregoing, you have sought an opinion concerning whether the Board "violated Open Meetings Laws by discussing and creating a budget in executive session, which accommodated $536,000 in potential salary increases and without ever publicly acknowledging such action" and whether the denial of access to records indicating that amount "constitutes a violation of the Freedom of Information Laws."

In this regard, the courts have consistently interpreted the Freedom of Information Law in manner that fosters maximum access to government records. As a general matter, that statute 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 state's highest court, the Court of Appeals, has expressed its view of the intent of the Freedom of Information Law on several occasions, and most recently in Gould v. New York City Police Department [87 NY 2d 267 (1996)], stating that:

"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material
indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[4][b]). As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).

The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, directing that:

"...to invoke one of the exemptions of section 87(2), the agency must articulate 'particularized and specific justification' for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463).
If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative
documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

In the context of your request, I believe that only one of the grounds for denial, that cited in response to your request, would be pertinent in analyzing rights of access. Specifically, §87(2)(c) permits an agency to withhold records or portions thereof the disclosure of which "would impair present or imminent contract awards or collective bargaining negotiations. From my perspective, it is doubtful that a court would sustain the District's denial of access to the records at issue. If my understanding of the matter is accurate, the information withheld consisted of gross figures indicating moneys essentially set aside for salary increases for teachers without being earmarked as such. The information did not describe collective bargaining strategy; it did not deal with the numerous collective bargaining issues other than wages; it included no detail regarding any breakdown of possible payments or increases. In short, disclosure of those figures, without more, would not in my view have "impaired present or imminent...collective bargaining negotiations."

If denials of access to the kind of information at issue were found to be proper and sustainable, a school district's budget-related records, many of which are required by law to
be disclosed, would be unavailable to the public, and the public's capacity to reach reasoned decisions prior to consideration of a budget would be minimized. As you may be aware, boards of education are required to prepare and disclose to the public detailed information concerning their proposed budgets. Subdivision (1) of §1716 of the Education Law, entitled "Estimated expenses for ensuing year", states in relevant part that:

"It shall be the duty of the board of education of each district to present at the annual budget hearing a detailed statement in writing of the amount of money which will be required for the ensuing year for school purposes, specifying the several purposes and the amount for each."

Subdivision (4) requires that the proposed budget "shall be presented in three components: a program component, a capital component and an administrative component which shall be separately delineated...." Relevant to the issue at hand, that provision states in part that:

"The program component shall include, but need not be limited to, all program expenditures of the school district, including the salaries and benefits of teachers and any school administrators or supervisors who spend a majority of their time performing teaching duties, and all transportation operating expenses. The capital component shall include, but need not be limited to, all transportation capital, debt service, and lease expenditures; costs resulting from judgements in tax certiorari proceedings or the payment of awards from court judgments, administrative orders or settled or compromised claims; and all facilities costs
of the school district, including facilities lease expenditures, the annual debt service and total debt for all facilities financed by bonds and notes of the school district, and the costs of
construction, acquisition, reconstruction, rehabilitation or improvement of school buildings, provided that such budget shall include a rental, operations and maintenance section that
includes base rent costs, total rent costs, operation and maintenance charges, cost per square foot for each facility leased by the school district, and any and all expenditures
associated with custodial salaries and benefits, service contracts, supplies, utilities, and maintenance and repairs of school facilities."

Arguably, the detail in the proposed budget that must be made available to the public might, if disclosed "impair present or imminent contract awards" in any number of contexts (i.e., leasing, or the purchase of goods and services. Nevertheless, in enacting §1716, the Legislature apparently determined that there would be no such impairment and that the public has the right to know, in reasonable detail, how tax dollars will be allocated. The same conclusion should be reached in relation to the kind of information that was withheld, which, as I understand the provision quoted above, must be included in the "program component" of a proposed budget that must indicate "the salaries and benefits of teachers." Again, the figures that should appear would not detail a district's negotiation strategy or identify particular elements pertinent in the collective bargaining process. Therefore, in my view, §87(2)(c) would not serve as a justifiable basis for withholding the information at issue.

With respect to the propriety of executive sessions, the Open Meetings Law, like the Freedom of Information Law, is based on a presumption of openness. Meetings of public bodies, such as boards of education, must be conducted open to the public, unless there is a basis for entry into executive session. Section 105(1) specifies and limits the grounds for entry into executive session. Pertinent to the matter is paragraph (e) of §105(1), which permits a public body to conduct an executive session regarding "collective negotiations pursuant to article fourteen of the civil service law." Article 14 is commonly known as the Taylor Law", and it deals with the relationship between public employers and public employee unions. As such, it is clear that a public body may conduct an executive session to discuss collective bargaining negotiations. The question, therefore, involves whether or the extent to which the Board conducted executive session to discuss the budget, as opposed to what clearly would be collective bargaining negotiations. In my view, insofar as discussions focused on the former, there would have been no basis for entry into executive session. In an effort to enhance compliance with and understanding of the statutes cited in the preceding commentary, copies of this opinion will be sent to District officials.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Board of Education
Elizabeth McKean