January 17, 2006
FROM: Robert J. Freeman, Executive 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 facts presented in your correspondence.
As you are aware, I have received a variety of material from you concerning an aspect of a draft Memorandum of Understanding (MOU) between Community Board # 1 and The Goldman Sachs Group, Inc. From my perspective, the terms of the MOU would not be inconsistent with the Open Meetings Law.
By way of brief background, Goldman Sachs has proposed to develop a site within the geographical bounds of the Community Board as its headquarters, and the Board has requested that Goldman Sachs consider several issues relative to the area in which its headquarters would be located, including the "Integration of the project with the vibrant residential neighborhood to the north." The MOU contains several elements, including funding by Goldman Sachs in the amount of $3.5 million for a branch of the New York Public Library, and $1 million for a community youth recreation center. The issue presented relates to Section 10 of the MOU, entitled "Confidentiality", which would provide in relevant part as follows:
"(a) CB#1 agrees that neither it, nor any of its affiliates, agents, contractors or representatives, shall, without the prior written consent of Goldman Sachs in each instance...
(iii) discuss with, or comment to unrelated third parties or members of the press or other media, regarding any of Goldman Sach’s obligations or activities under this Agreement.
(b) Notwithstanding Section 10(a) of this Agreement, Goldman Sachs hereby acknowledges (i) the existence of the Open Meetings Law, N.Y. Pub. Off. L., Art. 7, §100-110, (ii), CB #1's obligation to comply with such law, and (iii) that activities of CB#1 to comply with such obligation shall not constitute a breach of Section 10(a) of this Agreement, provided such activities are not for a purpose other than to comply with such obligation."
One of the members of the Board indicated that he would want me in an opinion "to reflect [the] view that Board members would legally be free to discuss Goldman’s performance under the agreement with members of the press or any other members of the public, outside of community Board meetings." I could not so advise. However, I offer the following comments.
First, there is nothing in the Open Meetings Law that requires that members of public bodies, such as community boards, speak with representatives of the news media or others outside the context of meetings held in accordance with the Open Meetings Law. Similarly, there is no obligation imposed by that statute to respond to questions. While members of public bodies frequently do so, there is no requirement that they must.
Second, the portion of the Agreement pertaining to confidentiality is not unique in its thrust or intent. Several situations have arisen in which the parties to an agreement or stipulation of settlement have consented by means of a contract to refrain from speaking about or disclosing the terms of the agreement or stipulation on their own initiative. In my view, it is likely that the parties may validly agree not to speak about an agreement.
In Paul Smith’s College of Arts and Sciences v. Cuomo, the matter pertained to a complaint made to the State Division of Human Rights, which agreed to a settlement requiring confidentiality applicable to the agreement itself, as well as any disclosure concerning the agreement. The Division of Human Rights issued a press release regarding the agreement. The Court found that issuance of the press release violated the agreement, but that the agreement itself is accessible to the public. The issue before the Court related to the Freedom of Information Law, the statutory companion of the Open Meetings Law, and it was held that:
"Although exceptions to disclosure are provided in §§87 and 89, plaintiff has not met his burden of demonstrating that the financial provisions of this agreement fit within one of these statutory exceptions (see Matter of Washington Post v New York State Ins. Dept. 61 NY2d 557, 566). While partially recognized in Matter of LaRocca v Bd. of Education, 220 AD2d 424, those narrowly defined exceptions are not relevant to defendants’ disclosure of the terms of a financial settlement (see Matter of Western Suffolk BOCES v Bay Shore Union Free School District, ___AD2d___ 672 NYS2d 776). There is no question that defendants lacked the authority to subvert FOIL by exempting information from the enactment by simply promising confidentiality (Matter of Washington Post, supra p567).
"Therefore, this Court finds that the disclosure made by the defendant Supervisor was ‘required by law’, whether or not the contract so provided" (Hansen v. Town of Wallkill, Supreme Court, Orange County, December 9, 1998).
Stated differently, the issuance of a press release constituted a violation of the agreement, but the agreement could not serve to restrict or diminish rights of access conferred by the Freedom of Information Law, which required disclosure of the agreement itself.
In the context of the matter that you have presented, subdivision (b) of Section 10 appears to evidence a recognition of the Board’s need to comply with the Open Meetings Law. That being so, I believe that the Board may comply with the Open Meetings Law and the portion of the agreement relating to that law. The agreement, in short, would not effect the Board’s obligation to comply with the Open Meetings Law.
For the reasons expressed above, I do not believe that Section 10 of the Agreement would be contrary to law.
I hope that I have been of assistance.