May 10, 2006
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, unless otherwise indicated.
As you are aware, I have received your letter and a variety of materials concerning disclosures that you have made as a member of the Lansing Central School District Board of Education. In short, you have been criticized in relation to those disclosures by the President of the Lansing Administrators & Supervisors Organization and in a letter signed by six members of the Board.
From my perspective, the controversy associated with your comments represents an overreaction and misapplication of law.
According to your letter, you could not attend a Board workshop, and you later received “handouts from the session and the notes the board president had taken.” You forwarded a copy of the notes, which state in items 3 and 4 in relevant part as follows:
i. Relationships - Above All & Never Ending
ii. Short term: interim positions
iii. John Gizzi (i.e., review records, evaluate, mentor, develop, options re: tenure
4.Mark will have to support Debra and her interactions with the faculty as she does her work. Need to help her overcome resistance. Board agrees to support Mark as he works with Debra.”
At an ensuing meeting, you wrote that “you read aloud item 3.f.iii., asked its meaning and were told that the matter would not be discussed during the current meeting.” You then read aloud item 4, asked what it means, and were told by the Board President that “it had to do with Deborah Pichette and her role in faculty development.” You indicated that “that’s all that was said.”
Following the meeting during which you read aloud the preceding, the President of the Administrators & Supervisors Association, Michelle Stone, addressed a memorandum to Mark Lewis, the Superintendent, and Bonita Lindberg, the Board President, and wrote as follows:
“As you are aware, during the board of education meeting on 2/13/06, a member of the board of education revealed personnel information regarding two members of the administrative staff. To the best of my knowledge, that information was read from a set of minutes kept during a board of education retreat, considered a closed (executive) session. The incident was shocking, demoralizing, and illegal.
“As the president of the Lansing Administrators and Supervisors Organization and on behalf of that unit, I am requesting that action be taken against the board member who acted inappropriately. Although nothing can take away the humiliation caused by her statements, it is important that she be held accountable.”
In response to that memorandum, Ms. Lindberg wrote to Ms. Stone, stating that:
“The Board wants you to know that it sincerely regrets the fact that information we had discussed privately during our workshop in January was read aloud by a board member during the public session of the meeting held on February 13th. That board member had chosen not to attend the workshop.
“I have discussed the matter with Board Counsel and, while the workshop topics did not rise to the level of confidentiality afforded to an Executive Session, certain information, comments and general conversation regarding some of the ancillary matters, did relate to items and views concerning some of our employees. As such, the comments and observations of board members offered privately were of a personal enough nature that they should have been treated by all board members in the same manner as we treat such items at the public sessions of board meetings. As you know, the board generally attempts to avoid discussion of matters relating to confidential personnel information in open session.
“It simply should not have been discussed by the board member at that time. It only served to create a bad impression and to cause needless embarrassment to the individuals and to the board.
“During the days immediately following the meeting I contacted Debra and John and offered my apology and that of the board.”
In a separate letter addressed to you signed by six Board members referencing your comments made aloud, you were chided, for it was stated that the workshop:
“...involved board comments and advice on pending and future personnel matters and therefore, should not have been discussed in open session. Without regard to the sensitivities of John and Debra, you chose to share with the general public input that we provided Dr. Lewis at his request. The comments we gave to Dr. Lewis regarding staffing and personnel matters were for the sole purpose of helping him establish his work agenda as our Superintendent. They were offered to him with the expectation that, for various reasons, the confidentiality of the subjects and the privacy rights of the employees would be respected, as we’ve always tried to do. The notes of that workshop were given to you, as a member of our board – with every expectation that you would recognize and respect the confidential nature of their content. The detrimental effect your actions had on our administrators is immeasurable. To have personnel matters discussed in the manner you chose invites severe criticism and complaints as well as the potential for litigation. We have an obligation to our administrators, faculty and staff to address their employment related issues in an appropriate manner and we trust you would understand the concern they would have about dealing with these confidential matters in a public meeting. In the future, we expect that you will refrain from discussing personnel matters outside of executive session.”
Although I would like to offer a personal commentary concerning the reaction to your comments, I will refrain from so doing. Rather, my remarks will be limited to an analysis based on the law and its judicial construction. In brief, however, I do not believe that you violated any law or that the matters that you read aloud may be characterized as confidential.
First, the terms “personnel” and “confidential” arose frequently in the materials relating to your action. A careful reading of the Open Meetings Law indicates that the word “personnel” appears nowhere in that statute. To be sure, there are some issues that relate to “personnel” that may properly be considered during executive sessions. Nevertheless, there are many others that do not fall within any of the grounds for entry into executive session. Moreover, there is simply nothing in the Open Meetings Law that specifies that personnel-related issues are confidential.
As you are likely aware, the language of the provision generally cited to discuss personnel matters is limited and precise. Specifically, §105(1)(f) of the Open Meetings Law authorizes a public body, such as a board of education, to enter into 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...”
In my view, there is nothing in the information that you read aloud that would appear to justify entry into executive session, for the topics appearing in that provision do not appear to have been pertinent or related to the information that you read aloud.
Second, even when there was a basis for entry into executive session, there is no obligation to convene in private. Section 105(1) prescribes a procedure that must be accomplished in public before an executive session may be held. That provision 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, provided, however, that no action by formal vote shall be taken to appropriate public moneys...”
If no motion is made to enter into executive session, which was so in the context of the situation that you described, or if a motion to conduct an executive session is not approved, a public body is generally free to discuss issues in public.
Further, based on our conversation, it is my understanding that the items that you read aloud were initially discussed at the Board’s workshop that was open to the public and could have been attended by any member of the public. If that is so, there appear to be no rationale for your fellow Board members’ criticism of you.
Third, the only instances, in my view, in which members of a public body are prohibited from disclosing information would involve matters that are indeed confidential. In my opinion, there was nothing confidential about your remarks or the subject matter to which your remarks related. When a public body has the discretionary authority to discuss a matter in public or in private, I do not believe that the matter can properly be characterized as “confidential.”
At this juncture, I note that one of the items discussed at the workshop that you could not attend involved a review by the District’s attorney of a ruling by the Commissioner of Education, and the summary states that: “Individual members who breach confidentiality of exec session may be removed from their Board seat. Same for confidential information.” The Commissioner’s decision in Application of Nett and Raby (No. 15315, October 24, 2005) states as follows:
“In addition to a board member’s general duties and responsibilities, General Municipal Law §805-a(1)(b) provides that no municipal officer or employee (including a school board member) shall ‘disclose confidential information acquired by him in the course of his official duties or use such information to further his personal interests.’ It is well settled that a board member’s disclosure of confidential information obtained at an executive session of a board meeting violates §805-a(1)(b) (see Applications of Balen, 40 Ed Dept Rep 250, Decision No. 14,474; Application of the Bd. of Educ.of the Middle Country Central School Dist., 33 id. 511, Decision No. 13,132; Appeal of Henning and Rohrer, 33 id, 232, Decision No. 13,035).
“Less clear is what constitutes ‘confidential’ information. The term ‘confidential’ is not defined in the General Municipal Law and the legislative history of §805-a does not provide any additional guidance into the meaning of that word...
“Absent a clear statutory definition, and given the importance of ensuring a uniform application in the educational system, the interpretation of ‘confidential’ in the school context is a matter best left to the Commissioner (see Komyathy v. Bd. of Educ. Wappinger Central School District No. 1, 75 Misc. 2d 859). Information that is meant to be kept secret is by general definition considered to be ‘confidential’ (see Black’s Law Dictionary [8th Ed. 2004]).”
While some interpretations of law might be “best left to the Commissioner”, I point out that each of the precedents cited in the excerpt of the decision quoted above involve the Commissioner’s own decisions. Avoided, however, are judicial decisions that are contrary to his conclusion.
Many judicial decisions have focused on access to and the ability to disclose records, and this office has considered the New York Freedom of Information Law, the federal Freedom of Information Act, and the Open Meetings Law in its analyses of what may be “confidential.” To be confidential under the Freedom of Information Law, I believe that records must be “specifically exempted from disclosure by state or federal statute” in accordance with §87(2)(a). Similarly, §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.
Both the state’s highest court, the Court of Appeals, 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” [Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)].
In like manner, in construing the equivalent exception to rights of access in the federal Act, 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.
In contrast, when records are not exempted from disclosure by a separate statute, both the Freedom of Information Law and its federal counterpart are permissive. Although an agency may withhold records in accordance with the grounds for denial appearing in §87(2), the Court of Appeals held that the agency is not obliged to do so and may choose 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, supra, 567).
The only situations in which an agency cannot disclose would involve those instances in which a statute other than the Freedom of Information Law prohibits disclosure. The same is so under the federal Act. While a federal agency may withhold records in accordance with the grounds for denial, it has discretionary authority to disclose. Stated differently, there is nothing inherently confidential about records that an agency may choose to withhold or disclose; only when an agency has no discretion and must deny access would records be confidential or “specifically exempted from disclosure by statute” in accordance with §87(2)(a).
The same analysis is applicable in the context of the Open Meetings Law. While that statute authorizes public bodies to conduct executive sessions in circumstances described in paragraphs (a) through (h) of §105(1), again, there is no requirement that an executive session be held even though a public body has the right to do so. The introductory language of §105(1), which prescribes a procedure that must be accomplished before an executive session may be held, clearly indicates that a public body "may" conduct an executive session only after having completed that procedure. If, for example, a motion is made to conduct an executive session for a valid reason, and the motion is not carried, the public body could either discuss the issue in public or table the matter for discussion in the future.
Since a public body 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, 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. As you may be aware, 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 the parents of the student consent 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.
The Commissioner failed to include reference to the only judicial decision of which I am aware that dealt squarely with the assertion that information acquired during an executive session is confidential. In a case in which the issue was whether discussions occurring during an executive session held by a school board could 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. Again, the Freedom of Information Law states that an agency may withhold records in certain circumstances; it has discretion to grant or deny access. The only instances in which records may be characterized as “confidential” would, based on judicial interpretations, involve those situations in which a statute prohibits disclosure and leaves no discretion to a person or body.
Based on the foregoing, I believe that the Commissioner’s conclusion that information that may be withheld or that information that may be discussed in executive session is confidential is inaccurate and contrary to the weight of judicial authority.
In sum, I do not believe that your disclosure involved a matter that could properly have been considered during an executive session. As I read the words that you read aloud, they are innocuous. There was no reason in my opinion for the reaction that you elicited. Even if an executive session could have been held to discuss the matter, and I am not suggesting that you or any other board member should intentionally disclose information that could clearly be damaging to an individual or the operation of a governmental entity, I reiterate my belief that the Commissioner’s conclusion is inconsistent with both state and federal judicial decisions.
Lastly, I refer once again to the letter addressed to you and signed by six Board members. Because the first line in that letter says that “We are writing this letter out of concern for your conduct...”, I question when the six members determined to prepare or approve the content of the letter. It appears that those six members may have taken action in a manner that contravened the requirements of the Open Meetings Law, and that their action represents a more serious lapse than that which is the subject of their disapproval and critical assessment of your conduct.
From my perspective, voting or action by a public body may be carried out only at a meeting during which a quorum has physically convened, or during a meeting held by videoconference.
Section 102(1) of the Open Meetings Law defines the term “meeting” to mean “the official convening of a public body for the purpose of conducting public business, including the use of videoconferencing for attendance and participation by the members of the public body.” Based upon an ordinary dictionary definition of “convene”, that term means:
"1. to summon before a tribunal;
2. to cause to assemble syn see 'SUMMON'" (Webster's Seventh New Collegiate Dictionary, Copyright 1965).
In view of that definition and others, I believe that a meeting, i.e., the "convening" of a public body, involves the physical coming together of at least a majority of the total membership of such a body, or a convening that occurs through videoconferencing.
The provisions in the Open Meetings Law concerning videoconferencing are newly enacted (Chapter 289 of the Laws of 2000), and in my view, those amendments clearly indicate that there are only two ways in which a public body may validly conduct a meeting. Any other means of conducting a meeting, i.e., by telephone conference, by mail, by e-mail, or perhaps by signing a letter in serial fashion at different times, would be inconsistent with law.
I point out that the definition of the phrase “public body” in §102(2) refers to entities that are required to conduct public business by means of a quorum. The term "quorum" is defined in §41 of the General Construction Law, which has been in effect since 1909. The cited provision, which was also amended to include language concerning videoconferencing, states that:
"Whenever three of more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers, gathered together in the presence of each other or through the use of videoconferencing, at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board of body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon reasonable notice to all of them, shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty. For the purpose of this provision the words 'whole number' shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting."
Based on the foregoing, again, a valid meeting may occur only when a majority of the total membership of a public body, a quorum, has “gathered together in the presence of each other or through the use of videoconferencing.” Moreover, only when a quorum has convened in the manner described in §41 of the General Construction Law would a public body have the authority to carry out its powers and duties. Consequently, it is my opinion that a public body may not take action or vote through the use of a telephone of via e-mail, for example, or by means of the members signing a letter at different times.
Conducting a vote or taking action in that manner or via e-mail or a series of telephone calls, would not, according to case law, constitute a valid meeting. In a decision dealing with a vote taken by phone, Cheevers v. Town of Union (Supreme Court, Broome County, September 3, 1998), which cited and relied upon an opinion rendered by this office, the court stated that:
“...there is a question as to whether the series of telephone calls among the individual members constitutes a meeting which would be subject to the Open Meetings Law. A meeting is defined as ‘the official convening of a public body for the purpose of conducting public business’ (Public Officers Law §102). Although ‘not every assembling of the members of a public body was intended to fall within the scope of the Open Meetings Law [such as casual encounters by members], ***informal conferences, agenda sessions and work sessions to invoke the provisions of the statute when a quorum is present and when the topics for discussion and decision are such as would otherwise arise at a regular meeting’ (Matter of Goodson Todman Enter. v. City of Kingston Common Council, 153 AD2d 103, 105). Peripheral discussions concerning an item of public business are subject to the provisions of the statute in the same manner as formal votes (see, Matter of Orange County Publs. v. Council of City of Newburgh, 60 AD2d 309, 415 Affd 45 NY2d 947).
“The issue was the Town’s policy concerning tax assessment reductions, clearly a matter of public business. There was no physical gathering, but four members of the five member board discussed the issue in a series of telephone calls. As a result, a quorum of members of the Board were ‘present’ and determined to publish the Dear Resident article. The failure to actually meet in person or have a telephone conference in order to avoid a ‘meeting’ circumvents the intent of the Open Meetings Law (see e.g., 1998 Advisory Opns Committee on Open Government 2877). This court finds that telephonic conferences among the individual members constituted a meeting in violation of the Open Meetings Law...”
I direct your attention to the legislative declaration of the Open Meetings Law, §100, which states in part that:
“It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.
Based on the foregoing, the Open Meetings Law is intended to provide the public with the right to observe the performance of public officials in their deliberations. That intent cannot be realized if members of a public body conduct public business as a body or vote by phone, by mail, by e-mail or by signing a letter at different times.
I hope that the foregoing serves to clarify your understanding and that I have been of assistance.
cc: Board of Education