October 10, 2006
Vivian Shevitz, Esq.
46 Truesdale Lake Drive
South Salem, NY 10590
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 Ms. Shevitz:
We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to records reflecting the underlying reason for termination of an Assistant Superintendent employed by the Katonah-Lewisboro Board of Education. In brief, the probationary appointment of the Assistant Superintendent was terminated by resolution of the Board without explanation at a public meeting, and questions have arisen as to what information, if any, is required to be released to the public concerning the Board’s rationale for making such decision and whether the potential for litigation should impact the determination to release information. In an effort to address the concerns raised by your inquiry, we offer the following comments.
First, it is noted at the outset that the title of the Freedom of Information Law may be somewhat misleading, for it is not a vehicle that requires agencies to provide information per se; rather, it requires agencies to disclose records to the extent provided by law. As such, while agency officials may in many circumstances choose to answer questions or to provide information by responding to questions, those steps would represent actions beyond the scope of the requirements of the Freedom of Information Law. Moreover, the Freedom of Information pertains to existing records. Section 89(3) of that statute states in part that an agency need not create a record in response to a request. In short, District officials in our view would not be obliged to provide the information sought by answering questions or preparing new records in an effort to be responsive.
Second, the possibility that records sought might be pertinent to or used in litigation is, in our view, largely irrelevant. As stated by the Court of Appeals in a case involving a request made under the Freedom of Information Law by a person involved in litigation against an agency: "Access to records of a government agency under the Freedom of Information Law (FOIL) (Public Officers Law, Article 6) is not affected by the fact that there is pending or potential litigation between the person making the request and the agency" [Farbman v. NYC Health and Hospitals Corporation, 62 NY 2d 75, 78 (1984)]. Similarly, in an earlier decision, the Court of Appeals determined that "the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and is neither enhanced...nor restricted...because he is also a litigant or potential litigant" [Matter of John P. v. Whalen, 54 NY 2d 89, 99 (1980)]. The Court in Farbman, supra, discussed the distinction between the use of the Freedom of Information Law as opposed to the use of discovery in Article 31 of the Civil Practice Law and Rules. Specifically, it was found that:
"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on governmental decision-making, its ambit is not confined to records actually used in the decision-making process (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY 2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request.
"CPLR article 31 proceeds under a different premise, and serves quite different concerns. While speaking also of 'full disclosure' article 31 is plainly more restrictive than FOIL. Access to records under CPLR depends on status and need. With goals of promoting both the ascertainment of truth at trial and the prompt disposition of actions (Allen v. Crowell-Collier Pub. Co., 21 NY 2d 403, 407), discovery is at the outset limited to that which is 'material and necessary in the prosecution or defense of an action'" [see Farbman, supra, at 80].
Based upon the foregoing, the pendency or threat of litigation would not, in our opinion, affect either the rights of the public or a litigant under the Freedom of Information Law.
Third, 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. Particularly relevant to an analysis of rights of access, or conversely, the ability to withhold the records sought, is §87(2)(b), which permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy".
While the standard concerning privacy is flexible and may be subject to conflicting interpretations, the courts have provided substantial direction regarding the privacy of public officers employees. It is clear that public officers and employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that public officers and employees are required to be more accountable than others. With regard to records pertaining to public officers and employees, the courts have found that, as a general rule, records that are relevant to the performance of their official duties are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v. Board of Education, East Moriches, supra; Capital Newspapers v. Burns, 67 NY 2d 562 (1986)]. Conversely, to the extent that records are irrelevant to the performance of one's official duties, it has been found that disclosure would indeed constitute an unwarranted invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov. 22, 1977].
The other ground for denial of significance, §87(2)(g), 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. Insofar as a request involves a final agency determination, we believe that the determination must be disclosed, again, unless a different ground for denial could be asserted.
In terms of the judicial interpretation of the Freedom of Information Law, it is emphasized that in situations in which allegations or charges have resulted in the issuance of a written reprimand, disciplinary action, or findings that public employees have engaged in misconduct, records reflective of those kinds of determinations have been found to be available, including the names of those who are the subjects of disciplinary action [see Powhida v. City of Albany, 147 AD 2d 236 (1989); also Farrell, Geneva Printing, Scaccia and Sinicropi, supra].
Further, you wrote that the Board approved the following resolution: “RESOLVED, that upon the recommendation of the Superintendent of Schools, the Probationary appointment of John Spang and his employment shall be terminated....”. Because the Superintendent’s recommendation was explicitly relied upon as the basis for termination, in consideration of judicial precedent, if the recommendation exists in writing, we believe that it must be disclosed to comply with the Freedom of Information Law.
In a decision in which an investigator's findings were adopted by the decision maker, the Borough President of Staten Island, the Appellate Division, Second Department, found that the record was public. The Court stated that:
"FOIL protects inter-agency or intra-agency materials which are not '**** final agency policy or determinations'...The exemption for intra-agency materials does not apply to final agency policy or decisions. Here, Molinari not only had relied on and incorporated the findings of the investigator, he expressly adopted them in explaining his actions. Having done so, he is precluded from claiming that the memoranda are exempt from disclosure" [New York 1 News v. Office of the President of the Borough of Staten Island, 647 NYS2d 270, 271 (1996)].
Similarly, in Miller v. Hewlett-Woodmere Union Free School District (Supreme Court, Nassau County, NYLJ, May 16, 1990), the Court determined that a recommendation that became a decision had to be disclosed, finding that:
"It is apparent that the Superintendent unreservedly endorsed the recommendation...adopting the reasoning as his own, and made his decision based on it. Assuredly, the Court must be alert to protecting 'the deliberative process of the government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers’...but the Court bears an equal responsibility to ensure that final decision makers are accountable to the public. When, as here, a concord exists as to intra-agency views, when deliberation has ceased and the consensus arrived at represents the final decision, disclosure is not only desirable but imperative for preserving the integrity of governmental decision making."
Based on the foregoing, if it exists, the record of the Superintendent’s recommendation must be made available to the public.
Finally, with respect to questions concerning the propriety of disclosing information acquired during an executive session we not a recent decision by the Commissioner of Education, Application of Nett and Raby (October 24, 2005), in which the Commissioner determined, in brief, that a member of a board of education may be removed from office if s/he discloses information acquired during an executive session.
In our opinion, although we are not suggesting that it be ignored, the Commissioner’s decision is erroneous, for matters discussed during executive session would be “confidential” only on rare occasions. While we would not recommend that a member of a school board should knowingly fail to comply with law, attached is an advisory opinion (OML-AO-3449) that describes in detail the rationale for our disagreement with the Commissioner. Most importantly, we do not intend to suggest that such disclosure would by uniformly appropriate or ethical; unilateral disclosure by a member of a public body might serve to defeat or circumvent the principles under which public bodies are intended to operate. Nevertheless, unless there is a statutory bar to disclosure, we do not believe that information acquired during an executive session is prohibited from being disclosed.
On behalf of the Committee on Open Government we hope this is helpful to you.
Camille S. Jobin-Davis
cc: Bruce Pavolow