May 16, 2008
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.
In your capacity as Executive Director of the Adirondack Park Local Government Review Board (“Review Board”), you requested an opinion concerning the Freedom of Information and Open Meetings Laws as they relate to a draft mediation protocol for an application filed by Preserve Associates, LLC regarding the Adirondack Club and Resort, Adirondack Park Agency Project No. 2005-100. Specifically, you indicated that the proposed protocol “includes a confidentiality agreement which all parties will be required to sign on April 23rd in order to participate in the mediation.” You requested our views regarding “whether or not [you] may sign the confidentiality agreement on behalf of the Review Board; whether [you] may discuss tentative and final agreements and proposed stipulations with the Review Board in executive session; and whether documents that come into [your] possession during the mediation would be subject to the Freedom of Information Law.” Subsequently, our office received a copy of the final version of the mediation protocol from the Adirondack Park Agency. Therefore, we offer the following comments pertaining to the final protocol (“protocol”).
First, with respect to provisions in the protocol regarding the “confidentiality” of statements or verbal descriptions of the mediation process, as you are likely aware, the Open Meetings Law is applicable to public bodies, and §102(2) 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."
Based on provisions of Executive Law, we believe that the Adirondack Park Local Government Review Board is a public body that falls within the requirements of the Open Meetings Law. Created through legislation enacted in 1973, the Review Board is comprised of 12 members, each of whom is a resident of a county wholly or partly within the Adirondack Park, and is appointed by the legislature of the county in which the member resides. In addition to its responsibility to advise and assist the Adirondack Park Agency, §803-a of the Executive Law provides that:
“7. In addition to any other functions or duties specifically required or authorized in this article, the review board shall monitor the administration and enforcement of the Adirondack park land use and development plan and periodically report thereon, and make recommendations in regard thereto, to the governor and the legislature, and to the county legislative body of each of the counties wholly or partly within the park.”
From our perspective, each of the conditions necessary to conclude that the Review Board constitutes a public body can be met. There are twelve members who conduct public business collectively as set forth in the statute. By so doing and carrying out their powers and duties, the members of the Review Board perform a governmental function for the state. While we know of no specific reference to a quorum requirement, a separate statute, §41 of the General Construction Law, requires that “Whenever three or 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 as a board or similar body”, they may carry out their duties only through the presence of a quorum and action taken by majority of the vote the total membership of such entity.
We note that the protocol requires all signatories to keep “the development of the agendas for the mediation sessions as well as the substantive discussions held during the mediation sessions” confidential “to the fullest extent as allowed by law” (page 3), and further requires that “Nothing in this agreement precludes the parties from informing the party’s decision makers regarding all aspects of the mediation process including substantive and procedures issues discussed in the mediation process. Such information will be kept confidential” (page 4). With respect to public statements the Protocol indicates that “The parties have agreed to preserve the confidentiality of the mediation in order to advance the mediation process” (page 4). And further, “Except as provided herein, nothing in this agreement precludes any party from issuing media releases, participating in public discussions, taking public positions or any other activity involving the proposed ACR Project or to appear before any local, state or federal agency that may be considering an application for the ACR Project, provided that the mediation sessions remain confidential” (pages 4-5).
If you were to have signed this Protocol on behalf of the Review Board, we believe that neither you nor the Review Board would have been able to fulfill the above outlined commitments, and concurrently comply with the Open Meetings Law.
By way of background, the Open Meetings Law pertains to meetings of public bodies, and §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". The definition of "meeting" has been broadly interpreted by the courts, and in a landmark decision rendered in 1978, the Court of Appeals, the state's highest court, found that any gathering of a quorum of a public body for the purpose of conducting public business is a "meeting" that must be convened open to the public, whether or not there is an intent to take action and regardless of the manner in which a gathering may be characterized [see Orange County Publications v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)].
It is emphasized that the Open Meetings Law requires that a procedure be accomplished, during an open meeting, before a public body may enter into an executive session. Section 105(1) states in relevant part 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..."
As such, a motion to conduct an executive session must include reference to the subject or subjects to be discussed, and the motion must be carried by majority vote of a public body's total membership before such a session may validly be held. The ensuing provisions of §105(1) specify and limit the subjects that may appropriately be considered during an executive session.
Further, it has been held judicially that :
"...the public body must identify the subject matter to be discussed (See, Public Officers Law § 105 ), and it is apparent that this must be accomplished with some degree of particularity, i.e., merely reciting the statutory language is insufficient (see, Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc 2d 303, 304-305). Additionally, the topics discussed during the executive session must remain within the exceptions enumerated in the statute (see generally, Matter of Plattsburgh Publ. Co., Div. of Ottaway Newspapers v City of Plattsburgh, 185 AD2d §18), and these exceptions, in turn, 'must be narrowly scrutinized, lest the article's clear mandate be thwarted by thinly veiled references to the areas delineated thereunder' (Weatherwax v Town of Stony Point, 97 AD2d 840, 841, quoting Daily Gazette Co. v Town Bd., Town of Cobleskill, supra, at 304; see, Matter of Orange County Publs., Div. of Ottaway Newspapers v County of Orange, 120 AD2d 596, lv dismissed 68 NY 2d 807)”
We stress that a public body may validly conduct an executive session only to discuss one or more of the subjects listed in §105(1) and that a motion to conduct an executive session must be sufficiently detailed to enable the public to ascertain that there is a proper basis for entry into the closed session. In our opinion there is no basis in the law to enter into executive session to discuss the particulars of a mediation process regarding an application pending before the Adirondack Park Agency.
It is likely that the provision which permits a public body to enter into an executive session to discuss “proposed, pending or current litigation” (§105[d]) would not apply. While the courts have not sought to define the distinction between "proposed" and "pending" or "pending" and "current" litigation, they have provided direction concerning the scope of the exception in a manner consistent with the general intent of the grounds for entry into executive session. Specifically, it has been held that:
"The purpose of paragraph d is 'to enable a public body to discuss pending litigation privately, without baring its strategy to its adversary through mandatory public meetings' (Matter of Concerned Citizens to Review Jefferson Val. Mall v. Town Bd. Of Town of Yorktown, 83 AD 2d 612, 613, 441 NYS 2d 292). The belief of the town's attorney that a decision adverse to petitioner 'would almost certainly lead to litigation' does not justify the conducting of this public business in an executive session. To accept this argument would be to accept the view that any public body could bar the public from its meetings simply be expressing the fear that litigation may result from actions taken therein. Such a view would be contrary to both the letter and the spirit of the exception" [Weatherwax v. Town of Stony Point, 97 AD 2d 840, 841 (1983)].
In view of the foregoing, the exception is intended to permit a public body to discuss its litigation strategy behind closed doors, so as not to divulge its strategy to its adversary, who may be present with other members of the public at the meeting. We note too, that the Concerned Citizens decision cited in Weatherwax involved a situation in which a town board involved in litigation met with its adversary in an executive session to discuss a settlement. The court determined that there was no basis for entry into executive session; the ability of the board to conduct a closed session ended when the adversary was permitted to attend.
In the context of the matter at issue, there is no litigation pending between or among the parties to the mediation process, and both the developer and the other signatories, who may have interests adverse to each other, are present during the course of the mediation sessions. Accordingly, while one could contractually agree not to make statements to the press, or to refrain from answering questions about the process from the public, in our opinion, a quorum of the members of the Review Board would not be permitted to discuss the mediation process, or receive a briefing from you, in executive session. If you were required to obtain approval from the Review Board in order to proceed with an issue during the mediation process, for example in our opinion, it is likely that there would be no basis for the Review Board to discuss the issue in executive session.
We turn now to the issue of public access to records created and/or received and/or reviewed during the mediation process. Before addressing the individual restrictions proposed by the Protocol, we note that it has been held in variety of circumstances that a promise or assertion of confidentiality cannot be upheld, unless a statute specifically confers confidentiality. In Gannett News Service v. Office of Alcoholism and Substance Abuse Services [415 NYS 2d 780 (1979)], a state agency guaranteed confidentiality to school districts participating in a statistical survey concerning drug abuse. The court determined that the promise of confidentiality could not be sustained, and that the records were available, for none of the grounds for denial appearing in the Freedom of Information Law could justifiably be asserted. In a decision rendered by the Court of Appeals, it was held that a state agency's:
"long-standing promise of confidentiality to the intervenors is irrelevant to whether the requested documents fit within the Legislature's definition of 'record' under FOIL. The definition does not exclude or make any reference to information labeled as 'confidential' by the agency; confidentiality is relevant only when determining whether the record or a portion of it is exempt..." [Washington Post v. Insurance Department, 61 NY 2d 557, 565 (1984)].
We note that the while minutes of the mediation sessions will not be prepared, the protocol permits that each party “may keep notes of the mediation sessions”. The protocol requires that “Such notes will remain confidential to the fullest extent as allowed by law.”
With respect to the status of notes of meetings it is emphasized that the Freedom of Information Law is applicable to all agency records, that both the Adirondack Park Agency and the Review Board are “agencies” subject to the law, and that §86(4) of that statute defines the term "record" expansively to include:
"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."
The Court of Appeals has construed the definition as broadly as its specific language suggests. The first such decision that dealt squarely with the scope of the term "record" involved documents pertaining to a lottery sponsored by a fire department. Although the agency contended that the documents did not pertain to the performance of its official duties, i.e., fighting fires, but rather to a "nongovernmental" activity, the Court rejected the claim of a "governmental versus nongovernmental dichotomy" [see Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581 (1980)] and found that the documents constituted "records" subject to rights of access granted by the Law. Moreover, the Court determined that:
"The statutory definition of 'record' makes nothing turn on the purpose for which it relates. This conclusion accords with the spirit as well as the letter of the statute. For not only are the expanding boundaries of governmental activity increasingly difficult to draw, but in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same person or persons" (id.).
In another decision rendered by the Court of Appeals, the Court focused on an agency claim that it could "engage in unilateral prescreening of those documents which it deems to be outside of the scope of FOIL" and found that such activity "would be inconsistent with the process set forth in the statute" [Capital Newspapers v. Whalen, 69 NY 2d 246, 253 (1987)]. The Court determined that:
"...the procedure permitting an unreviewable prescreening of documents - which respondents urge us to engraft on the statute - could be used by an uncooperative and obdurate public official or agency to block an entirely legitimate request. There would be no way to prevent a custodian of records from removing a public record from FOIL's reach by simply labeling it 'purely private.' Such a construction, which would thwart the entire objective of FOIL by creating an easy means of avoiding compliance, should be rejected" (id., 254).
Perhaps most pertinent is a case involving notes taken by the Secretary to the Board of Regents that he characterized as "personal" in conjunction with a contention that he prepared the notes in part "as a private person making personal notes of observations...in the course of" meetings. In that decision, the court cited the definition of "record" and determined that the notes did not consist of personal property but rather were records subject to rights conferred by the Freedom of Information Law [Warder v. Board of Regents, 410 NYS 2d 742, 743 (1978)].
The protocol further requires that “The mediation process, including but not limited to, the development of the agendas for the mediation sessions as well as the substantive discussions held during the mediation sessions, shall be kept confidential by the parties and the mediator to the fullest extent as allowed by law.” Insofar as an agenda is created or an attendee during the mediation process makes notes indicating the parties’ agreement to the items on an agenda for the next mediation session, we believe these materials would be “records” subject to rights conferred by the Freedom of Information Law.
As a general matter, 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 (j) of the law. Perhaps most pertinent here is §87(2)(g) which states that an agency may 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 our view be withheld.
Accordingly, we believe that notes created by public officials or employees of the Adirondack Park Agency and/or the Review Board during the course of the mediation process in question are “records” that fall within §87(2)(g). To the extent that such notes detail factual information, in our opinion, they would be required to be made public.
Similarly, although the protocol requires that “At the conclusion of the mediation process, or any mediation session, upon the request of a party which provided documents or other material to one or more parties, the recipients shall return the same to the originating party without retaining copies”, in our opinion, such documents and materials are “records” that fall within the coverage of the Freedom of Information Law. Returning the document to the provider, in our view, would not remove the agency’s responsibility to give effect to the Freedom of Information Law.
In keeping with the foregoing, we believe that other aspects of the protocol dealing with disclosure are inconsistent with law, particularly a provision requiring that “The parties and the mediator agree that government officials will seek to exempt from disclosure pursuant to the Freedom of Information Law all documents and records prepared for purposes of the mediation process. The parties, their designated representatives and consultants, as well as the mediator will not disclose information regarding the process, including draft and final settlement terms, to third parties, unless all parties agree otherwise” (page 3). Again, a promise or agreement regarding confidentiality cannot be sustained when none of the grounds for denial appearing in the Freedom of Information Law may justifiably be asserted.
In sum, insofar as the protocol may be inconsistent with the Open Meetings and Freedom of Information Laws, we believe that it is invalid and unenforceable.
On behalf of the Committee on Open Government, we hope this is helpful of you.
Camille S. Jobin-Davis
cc: Mitchell Goroski