February 1, 2005
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.
I have received your letter in which you wrote that you are a member of the Greece Board of Education and questioned the propriety of a policy adopted by the Board that states in part that:
"Matters discussed in executive sessions must be treated as confidential; that is, never discussed outside of that executive session. A violation of confidentiality will lead to disciplinary action as established by the Commissioner of Education."
You asked whether a board of education has the authority "to declare what is...and what is not, confidential" in relation to the Open Meetings and Freedom of Information Laws.
From my perspective, there is no legal basis for prohibiting a member of a board of education or any other person present during an executive session from speaking about or disclosing information obtained during an executive session validly held. This is not intended to suggest that such speech or disclosures would be wise, or ethical or in the best interest of a school district and its residents in every instance, but rather that there is no law that generally prohibits a person present during an executive session from speaking about that closed session. Further, I do not believe that a board of education can adopt a rule or policy that has the force of law or is empowered to silence an elected official.
As you are aware, the Open Meetings Law sets forth a procedure for entry into executive session and specifies the subjects appropriate for consideration in executive session. Its statutory companion, the Freedom of Information Law, deals with records. Both statutes contain permissive rather than mandatory language concerning the ability to discuss a matter in private or deny access to records.
A public body may enter into executive session in circumstances prescribed in the Open Meetings Law; it is not required to do so. Specifically, the introductory language of §105(1) entitled "Conduct of executive sessions" states that:
"Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only..."
The law clearly indicates that there is no obligation to conduct an executive session; a public body may choose do so, but only upon approval of a motion by a majority vote of its total membership. If a motion to enter into executive session is not approved, a public body is free to discuss the issue in public.
Similarly, although an agency may withhold records in accordance with the grounds for denial of access appearing in §87(2) of the Freedom of Information Law, the Court of Appeals has held that an agency is not obliged to do so and may opt to disclose, stating that:
"...while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provision contains permissible rather than mandatory language, and it is within the agency’s discretion to disclose such records...if it so chooses" [Capital Newspapers v. Burns, 67 NY2d 562, 567].
In my view, records may be characterized as "confidential" only when a statute, an act of Congress or the State Legislature, specifies that they cannot be disclosed. That circumstance is reflected in §87(2)(a) of the Freedom of Information Law, the first exception to rights of access, which pertains to records that "are specifically exempted from disclosure by state or federal statute." Section 108(3) of the Open Meetings Law refers to matters made confidential by state or federal law as "exempt" from the provisions of that statute. The effect is that the Open Meetings Law simply does not apply in those instances.
Both the Court of Appeals, the state’s highest court, and federal courts in construing access statutes have determined that the characterization of records as "confidential" or "exempted from disclosure by statute" must be based on statutory language that specifically confers or requires confidentiality. As stated by the Court of Appeals:
"Although we have never held that a State statute must expressly state it is intended to establish a FOIL exemption, we have required a showing of clear legislative intent to establish and preserve that confidentiality which one resisting disclosure claims as protection" (id.).
In like manner, in construing the equivalent exception to rights of access in the federal Freedom of Information Act (5 USC §552), it has been found that:
"Exemption 3 excludes from its coverage only matters that are:
specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.
"5 U.S.C. § 552(b)(3) (1982) (emphasis added). Records sought to be withheld under authority of another statute thus escape the release requirements of FOIA if – and only if – that statute meets the requirements of Exemption 3, including the threshold requirement that it specifically exempt matters from disclosure. The Supreme Court has equated ‘specifically’ with ‘explicitly.’ Baldridge v. Shapiro, 455 U.S. 345, 355, 102 S. Ct. 1103, 1109, 71 L.Ed.2d 199 (1982). ‘[O]nly explicitly non-disclosure statutes that evidence a congressional determination that certain materials ought to be kept in confidence will be sufficient to qualify under the exemption.’ Irons & Sears v. Dann, 606 F.2d 1215, 1220 (D.C.Cir.1979) (emphasis added). In other words, a statute that is claimed to qualify as an Exemption 3 withholding statute must, on its face, exempt matters from disclosure"[Reporters Committee for Freedom of the Press v. U.S. Department of Justice, 816 F.2d 730, 735 (1987); modified on other grounds,831 F.2d 1184 (1987); reversed on other grounds, 489 U.S. 789 (1989); see also British Airports Authority v. C.A.B., D.C.D.C.1982, 531 F.Supp. 408; Inglesias v. Central Intelligence Agency, D.C.D.C.1981, 525 F.Supp, 547; Hunt v. Commodity Futures Trading Commission, D.C.D.C.1979, 484 F.Supp. 47; Florida Medical Ass’n, Inc. v. Department of Health, Ed. & Welfare, D.C.Fla.1979, 479 F.Supp. 1291].
In short, to be "exempted from disclosure by statute", both state and federal courts have determined that a statute must leave no discretion to an agency: it must withhold such records.
Since a public body, such as the board of education, may choose to conduct an executive session or discuss an issue in public, information expressed during an executive session is not "confidential." To be confidential, again, a statute must prohibit disclosure and leave no discretion to an agency or official regarding the ability to disclose.
By means of example, because a federal statute prohibits disclosure, 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. 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 a parent of the student consents 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.
I note that in a case in which the issue was whether discussions occurring during an executive session held by a school board could generally 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 the context of most of the duties of most municipal boards, councils or similar bodies, there is no statute that forbids disclosure or requires confidentiality.
It is emphasized that it has been held by several courts, including the Court of Appeals, that an agency's rules or regulations or the provisions of a local enactment, such as an administrative code, local law, charter or ordinance, for example, do not constitute a "statute" [see e.g., Morris v. Martin, Chairman of the State Board of Equalization and Assessment, 440 NYS 2d 365, 82 Ad 2d 965, reversed 55 NY 2d 1026 (1982); Zuckerman v. NYS Board of Parole, 385 NYS 2d 811, 53 AD 2d 405 (1976); Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)]. Therefore, a local enactment, such as a policy adopted by the board of education, cannot confer, require or promise confidentiality. This not to suggest that many of the records used, developed or acquired in conjunction with school district business must be disclosed; rather, I am suggesting that records may in some instances be withheld in accordance with the grounds for denial appearing in the Freedom of Information Law, but that a local enactment cannot confer or require confidentiality; only a statute may do so.
Similarly, insofar as a local enactment is more restrictive concerning access than the Open Meetings Law, I believe that it would be invalid. Section 110 of the Open Meetings Law, entitled "Construction with other laws," states in subdivision (1) that:
"Any provision of a charter, administrative code, local law, ordinance, or rule or regulation affecting a public body which is more restrictive with respect to public access than this article shall be deemed superseded hereby to the extent that such provision is more restrictive than this article."
Because the Open Meetings Law is permissive in that it authorizes but does not require executive sessions to be held in appropriate circumstances, it is not a statute that confers confidentiality or prohibits public discussion. I believe that the Board’s policy requiring that information discussed during an executive session is "confidential" is "more restrictive with respect to public access" than the Open Meetings Law and, therefore, should be deemed superseded and invalid.
Considering the issue from a different vantage point, based on a decision rendered by the U.S. Court of Appeals for the Second Circuit [Harman v. City of New York, 140 F.3d 111 (2nd Cir. 1998)], it appears that the Board’s rule may be unconstitutional. In Harman, the New York City Human Resources Administration (HRA) adopted an executive order that forbade its employees:
"...from speaking with the media regarding any policies or activities of the agency without first obtaining permission from the agency’s media relations department. The City contends that these policies are necessary to meet the agencies’ obligations under federal and state law to protect the confidentiality of reports and information relating to children, families and other individuals served by the agencies" (id., 115).
I note that §136 of the Social Services Law prohibits a social services agency from disclosing records identifiable to an applicant for or recipient of public assistance. Additionally, §372 of the Social Services Law prohibits the disclosure of records identifiable to "abandoned, delinquent, destitute, neglected or dependent children..." As such, there is no question that many of HRA’s records are exempted from disclosure by statute and are, therefore, confidential. Nevertheless, the proceeding in Harman was precipitated by commentary that was not identifiable to any particular recipient, child or family; rather it involved the operation of the agency. As specified by the Court:
"...neither the Plaintiffs nor the public has any protected interest in releasing statutorily confidential information. Given the network of laws forbidding the dissemination of such information, Plaintiffs wisely concede this point. Therefore, we evaluate the interests of employees and of the public only in commenting on non-confidential agency policies and activities" (emphasis mine) (id., 119).
The Court in that passage highlighted the critical aspect of the point made earlier: that information may be characterized and exempted from disclosure by statute only when a statute forbids disclosure.
While a member of the board of education or other governing body may not be an "employee", in consideration of the possibility of sanctions, I believe that the holding in Harman would be applicable in the instant situation. In creating a "balancing test", it was held in Harman that "where the employee speaks on matters of public concern, the government bears the burden of justifying any adverse employment action" and that:
"This burden is particularly heavy where, as here, the issue is not an isolated disciplinary action taken in response to one employee’s speech, but is, instead, a blanket policy designed to restrict expression by a large number of potential speakers. To justify this kind of prospective regulation, ‘[t]he Government must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression’s ‘necessary impact on the actual operation’ of the Government." NTEU, 513 U.S. at 468, 115 S. Ct. at 1014 (quoting Pickering, 391 U.S. at 571, 88 S.Ct. at 1736)...
"‘[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.’) While the government has special authority to proscribe the speech of its employees , ‘[v]igilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees’ speech.’ Rankin, 483 U.S. at 384, 107 S. Ct. at 2896.
"A restraint on government employee expression ‘also imposes a significant burden on the public’s right to read and hear what the employees would otherwise have written and said.’ NTEU, 513 U.S. at 470, 115 S.Ct. at 1015. The Supreme Court has noted that ‘[g]overnment employees are often in the best position to know what ails the agencies for which they work; public debate may gain much from their informed opinions.’ Waters v. Churchill, 511 U.S. 661, 674, 114 S.Ct. 1878, 1887, 128 L.Ed.2d 686 (1994)..." (id., 118-119).
The "blanket policy" created by the Board that "[M]atters discussed in executive session must be treated as confidential" applies potentially to any person who may be present during or is aware of proceedings conducted during an executive session. That being so, it would appear to be invalid, as the executive order was found to be invalid in Harman. Moreover, it was stressed by the court that the harm sought to be avoided by means of a restriction on speech must be real, and not merely conjectural. It was determined that:
"...where the government singles out expressive activity for special regulation to address anticipated harms, the government must ‘demonstrate that the recited harms are real, not merely conjectural, and that the regulations will in fact alleviate these harms in a direct and material way.’ NTEU 513 U.S. at 475, 115 S.Ct. at 1017 (quoting Turner Broad Sys. Inc. v. Federal Communications Comm’n, 512 U.S. 622, 624, 114 S.Ct. 2445, 2450, 129 L.Ed.2d 497 (1994) (plurality opinion)). Although government predictions of harm are entitled to greater deference when used to justify restrictions on employee speech as opposed to speech by the public, such difference is generally accorded only when the government takes action in response to speech which has already taken place. NTEU, 513 U.S. at 475 n.21, 115 S.Ct. at 1017 n.21. Where the predictions of harm are proscriptive, the government cannot rely on assertions, but must show a basis in fact for its concerns" (id., 122).
The Board’s rule is prospective, for, in the words of Harman, "it chills speech before it happens" and does not focus on any harm that has actually occurred. In short, I believe that it stifles free speech in a manner that has been found to be unconstitutional.
In sum, for the reasons expressed in the preceding commentary, I do not believe that the Board’s policy can validly prohibit a person from discussing or disclosing information acquired during an executive session, nor can it require that documents relating to its proceeding be kept confidential.
I hope that I have been of assistance.
Robert J. Freeman