March 16, 1995
Mr. Robert C. Rustay
57 Schermerhorn Road
Schenectady, NY 12306-5201
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.
Dear Mr. Rustay:
I have received your letter of February 2 and a variety of materials related to it.
You have sought an advisory opinion concerning rights conferred by the Freedom of Information Law with respect to "accessibility to details of a 'Tentative Contract' reached by a School Board of Education and the respective Teachers Association." It appears that your inquiry was precipitated by a situation in the Schalmont Central School District in which a "tentative agreement" was reached. Although the members of the teachers' association approved the agreement, it was later rejected by the Board of Education. In response to your request for a copy of the tentative agreement, the records access officer denied access, stating that no final agreement had been reached and that "collective negotiations will continue." The denial was later affirmed by the Superintendent. In a letter addressed to the Director of Conciliation at the Public Employment Relations Board (PERB), you wrote that during the previous two series of collective negotiations, the Board of Education "refused to divulge to the public before their official vote for ratification, the details, even the cogent details, of the contract, thereby preventing any comments from the residents prior to the SBE ratification vote."
In this regard, I offer the following comments.
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 (i) of the Law.
The only ground for denial of relevance is §87(2)(c), which enables agencies to withhold records to the extent that disclosure would "impair present or imminent contract awards or collective bargaining negotiations." From my perspective, the key word in the exception is "impair", and the question involves whether or the extent to which disclosure of a record characterized as a "tentative agreement" would impair collective bargaining negotiations.
I know of no judicial decision rendered under the Freedom of Information Law that directly deals with the issue. It is your view that the public may have no capacity to express its views or, therefore, have an impact upon the outcome of negotiations, unless there is a right of access to the kind of records at issue. A potential question, however, is whether the statutes dealing with the relationship between public employers and public employees, which are collectively known as the "Taylor Law", are intended to provide the public with the right to participate in the negotiation process.
In other contexts, it has been advised that §87(2)(c) is intended to ensure that government agencies are not placed at a disadvantage at the bargaining table and to ensure that there is a "level playing field." For instance, if a teachers' association requested records from a school district indicating the district's collective bargaining strategy, the issues that it considers to be important or minor, or the parameters reflective of how much or little it would agree on, disclosure would place the district at a disadvantage and the negotiations would be unfair and unbalanced. In that kind of situation, it has been advised that disclosure would indeed impair collective negotiations and that the records may be withheld. Similarly, when an agency has sought to sell real property, it has been held that premature disclosure of the agency's appraisal of the property could be withheld under §87(2)(c) [see Murray v. Troy Urban Renewal Agency, 56 NY 2d 888 (1982)]. In that situation, if a potential buyer knew of the figure that an agency would be willing to accept, there would likely be little capacity on the part of the agency to negotiate effectively.
In both kinds of situations described above, there would be an inequality of knowledge. In the illustration concerning collective bargaining, the teachers' association would not know or have the right to know of the contents of the records indicating a school district's strategy in negotiations. In the appraisal situation, the person seeking that record would be unfamiliar with its contents and, as suggested above, premature disclosure would enable a potential purchaser to gain knowledge in a manner unfair to other bidders and possibly to the detriment of an agency and, therefore, the public. Disclosure in both instances would provide knowledge to the recipients that might effectively prevent an agency from engaging in an agreement that is most beneficial to taxpayers.
If there is no inequality of knowledge between or among the parties to negotiations, and if records have been shared or exchanged by the parties, it is questionable whether disclosure would impair contract awards or collective bargaining negotiations [see Community Board 7 of Borough of Manhattan v. Schaffer, 570 NYS 2d 769, affirmed 83 AD 2d 422; reversed on unrelated grounds, 84 NY 2d 148 (1994)]. In Community Board 7, the request involved materials exchanged between a New York City agency and the Trump organization in conjunction with negotiations between those two entities. The court rejected a contention that §87(2)(c) could be applied because there was "no bidding process involved where an edge could be unfairly given to one company" and "since the Trump organization is the only party involved these negotiations, there is no inequality of knowledge between the parties" (id., 771). Based on the holding in Community Board 7, it might be contended that since a copy of a tentative agreement is maintained by both the school district and the teachers' association, there is no inequality of knowledge regarding the content of that document and that, therefore, disclosure would not impair the negotiations. Contrarily, while the only formal or official parties to the negotiations are the school district and the teachers' association, it might also be contended that the public in general may be influential or have an adverse impact in relation to the negotiations, even though the public is not directly involved.
In good faith and in an effort to learn more of the Taylor Law, I contacted PERB and spoke to John M. Crotty, Deputy Chairperson and Counsel. Mr. Crotty made several points, the first of which is that a tentative agreement may represent the end of the process if indeed it is approved by both parties. However, as in the case of the situation described in your correspondence and many others, the development of the tentative agreement did not represent the end of the process, for it was rejected by the Board. Mr. Crotty explained that tentative agreement may or may not be used in future negotiations and that it is in many instances akin to a proposal or a "feeler" used merely as a basis for going forward. Mr. Crotty stressed that a so-called tentative agreement often serves as an informal method of expressing ideas that are in no way final.
Moreover, in his view, the Taylor Law envisions limited public involvement. Under §209 of the Civil Service Law, which is part of the Taylor Law, when there is an impasse, a procedure may be initiated under which PERB attempts to resolve the dispute by appointing a fact-finding board. When the board prepares findings of fact and recommendations for resolution of a dispute, such a record must be made public within five days of its transmission of the findings and recommendations to an agency and an an employee organization. As such, Mr. Crotty contends that no disclosure need be made until reaching the five day period referenced in §209(3)(c) after fact-finding. I note that §209(3)(e) states that "should either the public employer or the employee organization not accept in whole or in part the recommendations of the fact-finding board, a legislative body or authorized committee is required to conduct a public hearing during which the parties must explain their position regarding the report of the fact-finding board." Nevertheless, §209(3)(f) pertains specifically to school districts, and no public hearing is required under that provision. As such, in the case of negotiations and the fact-finding process that ensues concerning a school district and a tentative agreement, there appears to be no time in which the public has a formal opportunity to hear the points of view of the parties or to be heard for the purpose of expressing their views. Whether that is necessarily relevant to a determination concerning the Freedom of Information Law and its relationship to the Taylor Law is conjectural.
I believe that Mr. Crotty's opinion is that disclosure of a tentative agreement and related records would impair the collective bargaining process and that §87(2)(c) could properly be cited as a basis for withholding such records. While I cannot contest his expertise regarding the Taylor Law, the issue in my opinion potentially involves an agency's capacity to demonstrate to a court how or the extent to which disclosure of the kind of record to which you have referred would in fact impair collective bargaining negotiations. As indicated earlier, there is no judicial decision to which I can refer that would serve to clearly resolve the matter. Consequently, it would appear that clear guidance can only be provided judicially.
It is emphasized that the courts have consistently interpreted the Freedom of Information Law in a manner that fosters maximum access. As stated by the Court of Appeals more than decade ago:
"To be sure, the balance is presumptively struck in favor of disclosure, but in eight specific, narrowly constructed instances where the governmental agency convincingly demonstrates its need, disclosure will not be ordered (Public Officers Law, section 87, subd 2). Thus, the agency does not have carte blanche to withhold any information it pleases. Rather, it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the courts for in camera inspection, to exempt its records from disclosure (see Church of Scientology of N.Y. v. State of New York, 46 NY 2d 906, 908). Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld" [Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)]."
In another decision rendered by the Court of Appeals, it was held that:
"Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, Farbman & Sons v. New York City, 62 NY 2d 75, 80 (1984); and Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)].
Moreover, in the same decision, in a statement regarding the intent and utility of the Freedom of Information Law, it was found that:
"The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v New York City Health and Hosps. Corp., 62 NY 2d 75, 79). The statute, enacted in furtherance of the public's vested and inherent 'right to know', affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information 'to make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of government officers" (id., 565-566).
I hope that I have been of some assistance.
Robert J. Freeman
cc: Alan C. Longshore, Superintendent
John M. Crotty, Deputy Chairperson and Counsel
Ruth J. Kellogg, District Superintendent, BOCES
Matthew Roy, The Gazette