September 2, 2014
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 except as otherwise indicated.
This is in response to your request for an advisory opinion regarding application of the Freedom of Information Law and the Open Meetings Law to certain records of the Island Trees School District and gatherings of its Board. In particular, you questioned access to an appraisal, notice of public meetings and the appropriateness of executive sessions. At our invitation, counsel to the District submitted additional information for consideration, copy enclosed. While we have no authority to make findings of fact or compel an agency to behave in a certain manner, we offer the following comments in an effort to assist with comprehension of and compliance with law.
First, this will confirm that if an agency chooses, it may require that requests for records be made in writing, addressed to the records access officer. In this regard, §89(3)(a) of the Freedom of Information Law states in part that:
“Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date when such request will be granted or denied....”
Based on the foregoing, while it is not always necessary, it is clear in our opinion that an agency may require that a request be made in writing.
Turning now to Open Meetings Law issues, we note initially that exceptions to access to records under FOIL do not always coincide with grounds for entry into executive session. For example, a denial of access to records based on §87(2)(g), concerning a recommendation made by a superintendent to a board, would not necessarily permit a public body to discuss records related to the recommendation in executive session. Authority to enter into executive session would be dependent on the nature of the discussion.
With respect to concerns regarding adequate notice for public meetings, §104 of the Open Meetings Law pertains to notice and states that:
“1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before such meeting.
2. Public notice of the time and place of every other meeting shall be given to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.
3. The public notice provided for by this section shall not be construed to require publication as a legal notice.
4. If videoconferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that videoconferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations.
5. When a public body has the ability to do so, notice of the time and place of a meeting given in accordance with subdivision one or two of this section, shall also be conspicuously posted on the public body’s internet website.”
Section 104 thereby imposes a three-fold requirement: one, that notice must be posted in one or more conspicuous, public locations; two, that notice must be given to the news media; and three, that notice must be conspicuously posted on the body’s website, when there is an ability to do so. The requirement that notice of a meeting be "posted" in one or more "designated" locations, in our opinion, mandates that a public body, by resolution or through the adoption of policy or a directive, select one or more specific locations where notice of meetings will consistently and regularly be posted. If, for instance, a bulletin board located at the entrance of a district office building has been designated as a location for posting notices of meetings, the public has the ability to know where to ascertain whether and when meetings of a school board will be held. Similarly, every public body with the ability to do so should post notice of the time and place of every meeting online.
Based on the District Clerk’s statements that she faxed press releases containing meeting dates and times to the news media and posted them in designated buildings well in advance (May 12, 2014 correspondence), and your ability to locate information about upcoming meetings online, it would appear that the District has complied with the notice requirements. The clerk took additional steps to have meeting notices published in the news media, something that is not required by law.
Turning now to the issue of executive sessions, and having reviewed the minutes of several Board meetings, this will confirm that §106 of the Open Meetings Law requires that minutes consist of a “record or summary” of motions. Whether references to motions to enter into executive session as they appear in the minutes reflect the entirety of the words used in the motions, or merely a summary of the motions, is unknown. Nevertheless, in an effort to provide guidance, we offer the following comments.
By way of background, the Open Meetings Law requires that a procedure be accomplished, during an open meeting, before a public body may enter into an executive session. Specifically, §105(1) states in relevant part that:
"Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only..."
As such, a motion to conduct an executive session must include reference to the subject or subjects to be discussed, and the motion must be carried by majority vote of a public body's membership before such a session may validly be held. The ensuing provisions of §105(1) specify and limit the subjects that may appropriately be considered during an executive session.
One of the phrases that appears repeatedly in the minutes as a basis for executive session is “personnel reasons”. The provision concerning the possibility of discussing that subject in executive session is §105(1)(f), which permits a public body to enter into 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..." (emphasis added).
Due to the presence of the term "particular" in §105(1)(f), we believe that a discussion of "personnel" may be considered in an executive session only when the subject involves a particular person or persons in relation to one or more of the qualifers found in that provision.
It has been advised that a motion involving §105(1)(f) should be based on its specific language. For instance, a proper motion might be: "I move to enter into an executive session to discuss the employment history of a particular person (or persons)". Such a motion would not in our opinion have to identify the person or persons who may be the subject of a discussion. By means of the kind of motion suggested above, members of a public body and others in attendance would have the ability to know that there is a proper basis for entry into an executive session.
The Appellate Division rendered a decision regarding the specificity of motions for entry into executive session that offers direction. In Zehner v. Board of Education of Jordan-Elbridge (91 AD3d 1349, 937 NYS2d 510 [4th Dept. 2012]), the court required a public body to “identify with particularity the topic to be discussed, … since only through such identification will the purposes of the Open Meetings Law be realized.” The school board had entered into executive session based on a recitation of the statutory language in §105. Confirming the holding in Daily Gazette v. Town Board (444 NYS2d 44), the court determined that “merely regurgitating” the statutory language was insufficient. In one instance, the court held that when the board entered into executive session to discuss “matters related to the appointment or employment of a particular person,” it must identify the matter as part of the process of searching for a new superintendent.
Accordingly, we encourage board members to express information about the intended topic(s) for discussion in executive session in a manner that clarifies that the discussions are within the parameters of the law, and to protect individuals from what might be an unwarranted invasion of personal privacy and/or the government’s ability to function. A motion involving §105(1)(f) should be based on its specific language, and pursuant to Zehner, if the discussion will pertain to candidates for a certain vacant position, for example, it should contain reference to such position. If the discussion is limited to potential disciplinary action against a particular employee on the other hand, identifying the person’s title, in our opinion, would not be necessary. Such motions would not in our opinion have to identify the person or persons who may be the subject of a discussion. By means of the kind of motion suggested above, members of a public body and others in attendance would have the ability to know that there is a proper basis for entry into an executive session.
With respect to "real estate matters", the only ground for entry into executive session that refers to that topic is §105(1)(h), which permits a public body to conduct an executive session to discuss “the proposed acquisition, sale or lease of real property...but only when publicity would substantially affect the value thereof.” In some circumstances, disclosure of the location of a parcel could substantially affect the value of the parcel; in others, disclosure of the identities of the bidders, the amounts of the bids and perhaps the strategy for selling the property could substantially affect the value of the property.
Despite disclosure of an appraisal and the amount of a bid, the District contends that public discussion of the upcoming transaction would detrimentally affect the value of the property, i.e., the amount the District could expect to receive from the sale of the property. While the District may have had grounds to deny access to the appraisal and the bid amount pursuant to FOIL, its contention that because the bid process has not yet closed, the realtor
continues to show the property, and only one bid amount has been released is, in our opinion, a persuasive reason for contending that that discussions regarding the status of the property may affect its value. In addition, the difference between the appraisal and the highest bid (to date) is, in our opinion, further support for the opinion that disclosure of these two pieces of information is not necessarily determinative of the harm of holding discussions about the property in public.
We hope this is helpful.
Camille S. Jobin-Davis