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OML-AO-3764

February 27, 2004

E-Mail

TO:

FROM: Robert J. Freeman, Executive Director

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

As you are aware, I have received your letter in which you wrote that the Village of Hamburg "is dealing on a piece of property that may be a park - they don’t know" and "won’t divulge any information that may upset the sale." You asked whether that may be "against the law."

Because I have little detail concerning the matter, I cannot offer definitive advice. It is unclear whether the Village wants to purchase or sell property or whether the site of the property is known to the public. It is also unknown whether there is one party with which the Village may be negotiating, or whether there are or may be many. Those factors, in my view, would be pertinent in considering the issues. Nevertheless, in an effort to provide basic information, I offer the following comments.

It is noted at the outset that the Committee on Open Government is authorized to provide advice and opinions pertaining to the Freedom of Information and Open Meetings Laws, and my remarks will be limited to consideration of those statutes. There may, however, be other laws of significance, such as those involving zoning, environmental concerns, public hearings, etc.

As the Open Meetings Law relates to the matter, that statute is based on a presumption of openness, and meetings of public bodies must be conducted open to the public, except to the extent that an executive session may properly be conducted in accordance with paragraphs (a) through (h) of §105(1). Consequently, a public body, such as a village board of trustees, cannot enter into an executive session to discuss the subject of its choice. From my perspective, the grounds for entry into executive session are based on the need to avoid some sort of harm that would arise by means of public discussion, and that is so with respect to the only ground for entry into executive session that appears to be relevant in relation to the matter that you described.

Specifically, §105(1)(h) of the Open Meetings Law permits a public body to enter into executive session to discuss:

"the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof."

In my opinion, the language quoted above, like the other grounds for entry into executive session, is based on the principle that public business must be discussed in public unless public discussion would in some way be damaging, either to an individual, for example, or to a government in terms of its capacity to perform its functions appropriately and in the best interest of the public. It is clear that §105(1)(h) does not permit public bodies to conduct executive sessions to discuss all matters that may relate to the transaction of real property; only to the extent that publicity would "substantially affect the value of the property" can that provision validly be asserted.

A key question, in my view, involves the extent to which information relating to possible real property transactions has become known to the public. The more that is known, the less likely it is that publicity would have an impact on the value of a parcel or in some way damage the interests of taxpayers. I note that the language of §105(1)(h) does not refer to negotiations per se or the impact of publicity upon negotiations relating to a parcel; rather its proper assertion is limited to situations in which publicity would have a substantial effect on the value of the property. It has been advised, for example, that when a municipality is seeking to purchase a parcel and the public is unaware of the location or locations under consideration, it is possible if not likely that premature disclosure or publicity would indeed substantially affect the value of the property. In that kind of situation, publicity might result in speculation or offers from others, thereby precluding the municipality from reaching an optimal price on behalf of the taxpayers. However, when details concerning a potential real property transaction, such as the location and potential uses of the property, are known to the public, publicity would have a lesser effect or impact on the value of the parcel. Again, the more that is known to the public, the less likely it is that publicity would affect the value of a parcel.

Again, since I am unaware of the factual circumstances relating to the matter, I cannot offer unequivocal guidance.

With respect to the disclosure of records, the Freedom of Information Law 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.

Most pertinent is likely §87(2)(c), which authorizes an agency to withhold records to the extent that disclosure would "impair present or imminent contract awards...." That provision was asserted in a case in which appraisals maintained by a municipal agency were requested prior to the consummation of a transaction, and the Court of Appeals, the state’s highest court, upheld the denial [Murray v. Troy Urban Renewal Agency, 561 NY2d 888 (1982)]. In short, premature disclosure of the appraised value would have placed the agency at a disadvantage in the negotiating process.

I hope that the foregoing is useful to you and that I have been of assistance.

RJF:jm

cc: Board of Trustees