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OML-AO-3925

January 18, 2005

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 facts presented in your correspondence, unless otherwise indicated.

Dear

As you are aware, I have received your letter in which you questioned the propriety of executive sessions conducted by the Board of Trustees of the Village of Saranac Lake. It is my understanding that the matter relates to a "safe house" for battered women. It is your view that a "private project" would not qualify for consideration in private.

From my perspective, it appears that executive sessions might properly have been conducted, and I note that there is nothing in the Open Meetings Law that refers to "private projects" or that distinguishes private from public projects. In my view, the ability to enter into executive session relates to the subject matter under consideration and whether it falls within any of the grounds for entry into executive session listed in paragraphs (a) through (h) of §105(1) of that statute.

Although it is rarely cited, I believe that paragraph (a) would have been pertinent in the context of the situation that is the focus of your inquiry. That provision authorizes a public body, such as a village board of trustees, to conduct an executive session to discuss "matters which will imperil the public safety if disclosed." Similar factual situations have arisen in the past, and in consideration the need to provide safety and security to battered, abused or threatened women and their children, a public body may, in my opinion, enter into executive in any instance in which public discussion could place those persons in jeopardy or danger.

In a somewhat related vein, I point out that the analogous provision in the Freedom of Information Law, §87(2)(f), stated for more than two decades that an agency had the authority to deny access to records to the extent that disclosure "would endanger the life or safety of any person." As you may be aware, under that statute, an agency has the burden of defending secrecy and demonstrating that records that have been withheld clearly fall within the scope of one or more of the grounds for denial [see §89(4)(b)]. However, in cases involving the assertion of §87(2)(f), the standard developed by the courts was somewhat less stringent, for it was found that:

"This provision of the statute permits nondisclosure of information if it would pose a danger to the life or safety of any person. We reject petitioner’s assertion that respondents are required to prove that a danger to a person’s life or safety will occur if the information is made public (see, Matter of Nalo v. Sullivan, 125 AD2d 311, 312, lv denied 69 NY2d 612). Rather, there need only be a possibility that such information would endanger the lives or safety of individuals...."[Stronza v. Hoke, 148 AD2d 900,901 (1989)].

It is noted that the principle enunciated in Stronza has appeared in several other decisions [see Ruberti, Girvin & Ferlazzo v. NYS Division of the State Police, 641 NYS 2d 411, 218 AD2d 494 (1996), Connolly v. New York Guard, 572 NYS 2d 443, 175 AD 2d 372 (1991) and McDermott v. Lippman, Supreme Court, New York County, NYLJ, January 4, 1994]. In short, the courts found that an agency could justify a denial of access to records when there was a reasonable likelihood that disclosure could endanger the life or safety of any person. Since those decisions were rendered, the law was amended, replacing "would" with "could." While there are no judicial decisions of which I am aware that focus on §105(1)(a) of the Open Meetings Law, I believe that the standard is similar, that an executive session may properly be held when it can reasonably be contended that public discussion could imperil public safety or endanger the life of any person.

I hope that I have been of assistance.

RJF:tt

cc: Board of Trustees
Kareen Tyler