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OML-AO-4747

March 31, 2009

 

E-Mail

TO:

FROM: Camille S. Jobin-Davis, Assistant 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

We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to a request for records made to the East Ramapo Central School District. Specifically, you made the following requests, in relevant part:

“2. Documents prepared for the Building Reorganization Committee.

3. Minutes of the meetings from the Building Reorganization Committee.

4. Names of the Building Reorganization Committee members.”

In response, you were informed that “Items 2 through 4 are not subject to the FOIL law. The advisory committee was formed by the Superintendent and not the Board of Education, and the information you requested is not subject to the FOIL statute.”

From our perspective, whether the documents were shared with a committee has no bearing on whether they would be subject to the Freedom of Information Law. Further, if we are to understand the contents of those records accurately, there would be no basis for denying access to them. In this regard, we offer the following comments.

First, the Freedom of Information Law pertains to agency records, and §86(4) of the law 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, the State's highest court, 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).

In short, even though the Committee was created by the Superintendent, any records forwarded to or prepared or acquired by the Committee, by the Superintendent and/or the School District, would constitute “records” subject to rights conferred by the Freedom of Information Law.

Second, 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.

An assertion or claim of confidentiality, unless it is based upon a statute, is likely meaningless. When confidentiality is conferred by a statute, an act of the State Legislature or Congress, records fall outside the scope of rights of access pursuant to §87(2)(a) of the Freedom of Information Law, which states that an agency may withhold records that "are specifically exempted from disclosure by state or federal statute". If there is no statute upon which an agency can rely to characterize records as "confidential" or "exempted from disclosure", the records are subject to whatever rights of access exist under the Freedom of Information Law [see Doolan v.BOCES, 48 NY 2d 341 (1979); Washington Post v. Insurance Department, 61 NY 2d 557 (1984); Gannett News Service, Inc. v. State Office of Alcoholism and Substance Abuse, 415 NYS 2d 780 (1979)]. As such, an assertion of confidentiality without more, would not in our view serve to enable an agency to withhold a record.

Based on the preceding remarks, whether the documents were transmitted to the Committee, or whether the Committee was formed by the Superintendent or the School Board, would have no direct impact on whether the records are required to be made public in whole or in part.

With respect to the Committee’s responsibility to keep discussion issues “confidential” we note that it is likely that the Committee is not subject to the Open Meetings Law, and that, nevertheless, there is no prohibition against disclosure.

In this regard, 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 the foregoing, a public body is, in our view, an entity required to conduct public business by means of a quorum that performs a governmental function and carries out its duties collectively, as a body. In order to constitute a meeting subject to the Open Meetings Law, a majority of the total membership of a public body, a quorum, must be present for the purpose of conducting public business.

We note that several judicial decisions indicate generally that advisory bodies, other than those consisting of members of a governing body, that have no power to take final action fall outside the scope of the Open Meetings Law. As stated in those decisions: "it has long been held that the mere giving of advice, even about governmental matters is not itself a governmental function" [Goodson Todman Enterprises, Ltd. v. Town Board of Milan, 542 NYS 2d 373, 374, 151 AD 2d 642 (1989); Poughkeepsie Newspaper v. Mayor's Intergovernmental Task Force, 145 AD 2d 65, 67 (1989); see also New York Public Interest Research Group v. Governor's Advisory Commission, 507 NYS 2d 798, aff'd with no opinion, 135 AD 2d 1149, motion for leave to appeal denied, 71 NY 2d 964 (1988)]. In one of the decisions, Poughkeepsie Newspaper, supra, a task force was designated by then Mayor Koch consisting of representatives of New York City agencies, as well as federal and state agencies and the Westchester County Executive, to review plans and make recommendations concerning the City's long range water supply needs. The Court specified that the Mayor was "free to accept or reject the recommendations" of the Task Force and that "[i]t is clear that the Task Force, which was created by invitation rather than by statute or executive order, has no power, on its own, to implement any of its recommendations" (id., 67). Referring to the other cases cited above, the Court found that "[t]he unifying principle running through these decisions is that groups or entities that do not, in fact, exercise the power of the sovereign are not performing a governmental function, hence they are not 'public bod[ies] subject to the Open Meetings Law...”(id.).

Accordingly, based on your description of the Committee as advisory in nature, with a majority of the members being employees of the district, it is likely that the Committee is not subject to the Open Meetings Law. If our assumption is correct and the Open Meetings Law does not apply, although it could choose to do so, the Committee would not be required to hold public meetings nor allow the public to listen or observe its proceedings.

More importantly, however, based on our experience regarding typical discussions at advisory committee meetings, there is no legal basis for prohibiting a member of the Committee from speaking publicly about or disclosing information obtained during a Committee meeting. This is not intended to suggest that such speech or disclosure would be wise or proper in every instance, but rather, that there is no basis in law for prohibiting a person present during an advisory committee meeting for building reorganization from speaking about that meeting.

In our experience, there are few instances in which there would be a prohibition against disclosure. By means of example, 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 form the coverage of that statute (§108[3]). Committee members and/or employees would be prohibited from disclosing such information, because federal law requires confidentiality.

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 a rule prohibiting employees from speaking 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).

We 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 ours) (id., 119).

The Court in that passage highlighted a critical point: that information may be characterized and exempted from disclosure by statute only when a statute forbids disclosure.

In consideration of the possibility of sanctions, we believe that the holding in Harman may 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).

If what you relayed is accurate, that an employee could be fired if he or she publicly expresses an opinion contrary to the Superintendent’s, any such rule 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).

Any such rule as referenced above 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, we believe a rule prohibiting an employee from sharing what was discussed at a meeting stifles free speech in a manner that has been found to be unconstitutional.

In sum, for the reasons expressed in the preceding commentary, we do not believe that a school district rule can prohibit an employee, or any other person, from discussing or disclosing information acquired during a meeting of an advisory body, nor can it require that documents relating to its proceeding be kept confidential, unless a statute, an act of Congress or the State Legislature, expressly forbids disclosure.

On behalf of the Committee on Open Government, we hope that this is helpful to you.

CSJ:jm

cc: Ira E. Oustatcher, Superintendent
Cathy Russell, District Clerk