June 11, 1997
Mr. Robert Algmin
9 Fletcher Road, Apt. B
Monsey, NY 10952-3211
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 Mr. Algmin:
I have received your letter of May 21 and the materials
attached to it. You have asked that I review them due to your
"desire for open government."
The documentation focuses on the possibility that the Rockland
Community College Board of Trustees would vote to buy out the
contract of its president. Although the Board eventually
determined not to do so, as it considered the matter, a newspaper
reported that a clause in a buyout agreement would prohibit the
president from discussing College matters. Similarly, neither
College officials or the president would indicate why his contract
would not be renewed. Another news article stated that an
assistant County attorney asserted that "he could not say who in
the County Attorney's Office had handled the matter."
In this regard, I offer the following comments.
First, I know of no law that would require any of the parties
involved to discuss the matter openly or in detail. In short,
there is no requirement that present or former government officials
talk to the news media or others. Nevertheless, an agreement not
to speak to the public or the news media in no way limits public
rights of access to records under the Freedom of Information Law.
If there had been a buyout agreement, I believe that it would
clearly have been available under that statute, notwithstanding an
agreement not to discuss its contents [see e.g., Paul Smith's
College of Arts and Science v. Cuomo, 186 AD2d 888 (1992)].
Second, assuming that a County record identifies who in the
County Attorney's Office handled the matter, that portion of such
a record would in my view be available. Again, there would be no
requirement that any official must speak; nevertheless, there would
be an obligation to disclose under the Freedom of Information Law.
Insofar as any such record includes legal advice, opinions or other
kinds of communications that would fall within the scope of the
attorney-client privilege, I believe that it may be withheld.
However, it has been held that records reflective of descriptions
of legal services rendered, as opposed to "the content of the
communications", must ordinarily be disclosed [Orange County
Publications v. County of Orange, 637 NYS 2d 596 (1995)]. From my
perspective, while legal advice or opinions offered by persons in
the County Attorney's Office could clearly be withheld, the
identity of those who offered the advice, who "handled the matter",
would be public.
Lastly, it appears that the Board of Trustees had the ability
to discuss the issues pertaining to the president in private.
Section 105(1)(f) of the Open Meetings Law permits a public body to
conduct an 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..."
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Trustees