December 1, 2003
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.
I have received your note and a variety of material relating to it. You have sought my opinion concerning requests made under the Freedom of Information Law relating to an issue that has been considered by the both the Town of Southold Ethics Board and the Town Board.
One request, which was submitted by Ms. Melanie Norden, involved the original complaint filed by a named individual relative to a Town Board member, tapes of all meetings during which the complaint was discussed, and "all written decisions by any/all members" of the Ethics Board. A second request involved similar materials. You received a letter from the Secretary to the Ethics Board in which she wrote that a member of the Board advised that the persons seeking the records "may not have what is so broadly requested on their forms", and Ms. Norden has questioned the propriety of that response.
Based on a review of the materials that you submitted and discussions with Patricia Finnegan, Assistant Town Attorney, and in consideration of the unusual facts relating to the matter, I offer the following comments, some of which are intended to offer clarification and general guidance.
First, it is likely that you, not the Secretary to the Ethics Board or a member of the Board, have the authority to determine rights of access in response to a request made under the Freedom of Information Law.
By way of background, §89(1)(b)(iii) of the Freedom of Information Law requires the Committee on Open Government to promulgate regulations concerning the procedural aspects of the Law (see 21 NYCRR Part 1401). In turn, §87(1)(a) of the Law states that:
"the governing body of each public corporation shall promulgate uniform rules and regulations for all agencies in such public corporation 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, pertaining to the administration of this article."
In this instance, the governing body of a public corporation, the Town Board, is required to promulgate appropriate rules and regulations consistent with those adopted by the Committee on Open Government and with the Freedom of Information Law.
The initial responsibility to deal with requests is borne by an agency's records access officer, and the Committee's regulations provide direction concerning the designation and duties of a records access officer. Specifically, §1401.2 of the regulations provides in relevant part that:
"(a) The governing body of a public corporation and the head of an executive agency or governing body of other agencies shall be responsible for insuring compliance with the regulations herein, and shall designate one or more persons as records access officer by name or by specific job title and business address, who shall have the duty of coordinating agency response to public requests for access to records. The designation of one or more records access officers shall not be construed to prohibit officials who have in the past been authorized to make records or information available to the public from continuing to do so."
As such, the Town Board has the ability to designate "one or more persons as records access officer". Further, §1401.2(b) of the regulations describes the duties of a records access officer, including the duty to coordinate the agency's response to requests. If you, as the Town Clerk, have been designated records access officer, I believe that you have the authority to make initial determinations to grant or deny access to records in response to requests made under the Freedom of Information. In addition, as you are aware, §30(1) of the Town Law indicates that the town clerk is the legal custodian of all town records. Therefore, even if records are in the physical possession of the Ethics Board or a member of the Board, I believe that you have legal custody of those records.
Second, Ms. Norden indicated in testimony that the Town Ethics Code makes no reference to the ability of the Ethics Board to conduct executive sessions, and she questioned whether the Board has the authority to do so. I do not believe that the authority to conduct executive sessions need be mentioned in the Town Code, for it exists in the Open Meetings Law. That point was, in fact, offered to the other person who requested records, Ms. Jody Adams, in an advisory opinion addressed to her in 1996, copies of which were sent to the Town Board and the former Town Attorney. To reiterate, the Open Meetings Law is applicable to meetings of public bodies, and §102(2) of that statute defines the phrase "public body" to mean:
"...any entity for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body."
An ethics board or committee is a creation of law, and it clearly conducts public business and performs a governmental function for a public corporation, a town. That being so, I believe that it has the same obligations as a governing body, such as the Town Board, regarding openness and the provision of notice of meetings, for example, as the Town Board, as well as the same authority to conduct executive sessions when it is appropriate to do so. Section105(1) of the Open Meetings Law specifies and limits the grounds for entry for entry into executive session.
Relevant to the duties of a board of ethics is §105(1)(f) of the Law, which permits a public body to enter into an 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..."
If the issue before a board of ethics involves a particular person in conjunction with one or more of the subjects listed in §105(1)(f), I believe that an executive session could appropriately be held. For instance, if the issue deals with the "financial history" of a particular person or perhaps matters leading to the discipline of a particular person, §105(1)(f) could in my opinion be cited for the purpose of entering into an executive session.
Third, for purposes of general guidance, I note that both the Open Meetings Law and its companion statute, the Freedom of Information Law, are permissive. Under the former, a public body, such as the Town Board or the Ethics Board, may conduct executive sessions in accordance with §105(1) of the Open Meetings Law, but it is not required to do so. Similarly, the Freedom of Information Law provides that an agency, such as the Town, may withhold records in circumstances specified in that statute, but it is not required to do. Whether it is wise, ethical or in the public interest to discuss matters in public that may be considered in executive session or to disclose records that may be withheld under the Freedom of Information Law is, in my view, largely irrelevant to the authority to do so.
While I believe that the Ethics Board and the Town Board clearly have the ability to enter into executive under §105(1)(f) to discuss certain matters relating to a "particular person", again, in my view, there is no obligation to do so. In like manner, while certain records pertinent to the matter may in my opinion have been withheld under the Freedom of Information Law, I do not believe that there would have been any obligation to do so.
If my understanding of the Town Code is accurate, the Ethics Board does not have the authority to decide or make binding or final determinations. Section 10-20 of the Code entitled "Powers of Ethics Board" states that Board is authorized "to render advisory opinions on any matter of ethical conduct of town officials and employees..." Relevant to that provision is §87(2)(g) of the Freedom of Information Law, which authorizes an agency to withhold 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.
Applying the foregoing to the matters at issue, an advisory opinion prepared by the Ethics Board could in my view be withheld, except in two circumstances. If an opinion was rejected or modified, I believe that it would be deniable under both §87(2)(b) as an unwarranted invasion of personal privacy and under §87(2)(g), for it consists of a recommendation to the Town Board that is not final or binding. One situation in which the opinion of the Ethics Board would be public would involve the case in which the Town Board clearly adopts the opinion as its own, thereby making the opinion a final determination, and finds that an officer or employee engaged in misconduct (see e.g., Miller v. Hewlett-Woodmere Union Free School District, Supreme Court, Nassau County, NYLJ, May 16, 1990, in which recommendations were uniformly adopted as the agency's final determination). The other would involve a situation in which a local law requires disclosure. Having reviewed the Town Code as it relates to the matter, the extent to which the Code may require disclosure is, in my view, unclear and subject to a variety of possible interpretations.
Also relevant, as inferred above,is §87(2)(b), which authorizes an agency to deny access to records insofar as disclosure would constitute "an unwarranted invasion of personal privacy."
With respect to disclosure of the identity of a person who made a complaint to the Ethics Board, it has generally been advised that those portions of a complaint which identify complainants may be deleted on the ground that disclosure would result in an unwarranted invasion of personal privacy. I point out that §89(2)(b) states that an "agency may delete identifying details when it makes records available." Further, the same provision contains five examples of unwarranted invasions of personal privacy, the last two of which include:
"iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; or
v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency."
In my view, what is relevant to the work of the agency is the substance of the complaint, i.e., whether or not the complaint has merit. The identity of a member of the person who made the complaint is often irrelevant to the work of the agency, and in such circumstances, I believe that identifying details may be deleted.
In this instance, however, it is my understanding that the name of the complainant has been disclosed by himself and others. If that is so, there would appear to be no basis for withholding those portions of the complaint that indicate his identity.
As records pertain to public officers or employees, the courts have provided substantial direction. It is clear that public officers and employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that those persons are required to be more accountable than others. The courts have found that, as a general rule, records that are relevant to the performance of a public official’s duties are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d 562 (1986)]. Conversely, to the extent that records are irrelevant to the performance of one's official duties, it has been found that disclosure would indeed constitute an unwarranted invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov. 22, 1977].
Several of the decisions cited above, for example, Farrell, Sinicropi, Geneva Printing, Scaccia and Powhida, dealt with situations in which final determinations indicating the imposition of some sort of disciplinary action pertaining to particular public officials were found to be available. However, when allegations or charges of misconduct have not yet been determined or did not result in disciplinary action, the records relating to such allegations may, in my view, be withheld, for disclosure would result in an unwarranted invasion of personal privacy [see e.g., Herald Company v. School District of City of Syracuse, 430 NYS 2d 460 (1980)]. Further, to the extent that charges are dismissed or allegations are found to be without merit, I believe that they may be withheld.
In consideration of the preceding commentary, in the typical situation in which the Freedom of Information Law determines rights of access, opinions offered by the Ethics Board or its members may be withheld, unless and until an opinion is adopted by the Town Board or a local enactment requires disclosure. Similarly, if the Open Meetings Law was followed, discussions following a complaint concerning the conduct of a Town Board member could, in my opinion, have occurred during executive sessions.
What in fact occurred is unclear, but whether meetings and discussions of the matter were conducted in public or in executive session would affect rights of access to the tape recordings that were requested. Insofar as a tape recording captured commentary made during a public proceeding, I do not believe that there would be any basis for a denial of access, and it was held years ago tape recordings of open meetings are accessible under the Freedom of Information Law (see Zaleski v. Hicksville Union Free School District, Supreme Court, Nassau County, NYLJ, December 27, 1978). On the other hand, the contents of tape recordings of executive sessions reflecting the deliberative process of either the Town Board or the Ethics Board would consist of "intra-agency material" falling within the scope of §87(2)(g). Moreover, since there appears to have been no final determination by the Town Board indicating misconduct or imposing a penalty regarding the subject of the complaint, it appears that any such tapes could be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy.
I hope that I have been of assistance.
Robert J. Freeman
cc: Town Board