January 29, 2015
FROM: Camille Jobin-Davis, Assistant Director
The staff of the Committee on Open Government is authorized to issued advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence, expect as otherwise.
This is in response to your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the Teachers’ Retirement System of the City of New York. Specifically, you requested all correspondence to, from, or about Atlantic-Pacific Capital, The Yucaipa Companies, and/or Yucaipa American Alliance Fund II, LP, letters and other records related to disclosures; marketing materials; presentations; and copies of all other public records requests seeking any of the information being sought in this request, response letters and all documents provided to requestors. In response, TRS provided four pages of records, denying access to records of minutes of executive sessions, and records of reports prepared by outside consultants retained by TRS. On appeal, TRS clarified the bases for the denial of access to executive session minutes and consultant reports in their entirety.
It is our opinion that TRS has failed to comply with basic requirements of the Freedom of Information Law, including conducting a reasonable search for requested records, responding to requests within a reasonable time frame, and perhaps failing to provide sufficient access to records identified as responsive. In this regard, and in an effort to provide advice and counsel on these matters so as to avoid litigation, we offer the comments below.
First, 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 (l) of the Law. It is emphasized that the introductory language of §87(2) refers to the authority to withhold “records or portions thereof” that fall within the scope of the exceptions that follow. In our view, the phrase quoted in the preceding sentence evidences recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld. That being so, we believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.
The Court of Appeals, the state’s highest court, expressed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department (87 NY2d 267, 653 NYS2d 54 ), stating that:
“To ensure maximum access to government records, the ‘exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption’ (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 NY2d 106, 109) see, Public Officers Law § 89[b]). As this Court has stated, ‘[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld’ (Matter of Fink v. Lefkowitz, 47 NY2d 567, 571)” (87 NY2d at 275).
Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the Police Department contended that certain reports could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g). The Court, however, wrote that: “Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports. We agree” (id., 276), and stated as a general principle that “blanket exemptions for particular types of documents are inimical to FOIL's policy of open government” (id., 275). The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, stating that:
“...to invoke one of the exemptions of section 87(2), the agency must articulate ‘particularized and specific justification’ for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 NY2d at 571). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 133; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 NY2d at 83)” (87 NY2d at 275).
In the context of your requests, TRS has engaged in a blanket denial of access in a manner which, in our view, is equally inappropriate. We are not suggesting that the records sought must be disclosed in full. Rather, based on the direction given by the Court of Appeals in several decisions, the records must be reviewed by TRS for the purpose of identifying those portions of the records that might fall within the scope of one or more of the grounds for denial of access. As the Court stated later in the decision: “Indeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof, under any other applicable exemption, such as the law-enforcement exemption or the public-safety exemption, as long as the requisite particularized showing is made” (id., 277; emphasis added).
Second, the Freedom of Information Law requires that an applicant “reasonably describe” records of the agency. The corollary to this requirement, as specified by the highest court, is that an agency is required to make a “reasonable effort” to locate responsive records. We note that your request would encompass documents that are likely to exist, yet for which the agency has offered no response. For example, it may be that there are fee agreements with the private companies mentioned, correspondence between representatives of the companies and employees of TRS, marketing materials from the companies, and perhaps FOIL requests for such records other than the one at issue here, given the years encompassed by the request and the nature of the relationship between TRS and the firms.
In the alternative, we note that when an agency indicates that it does not maintain or cannot locate a record, as is implied here, an applicant for the record may seek a certification to that effect. Section 89(3) of the Freedom of Information Law provides in part that, in such a situation, on request, an agency “shall certify that it does not have possession of such record or that such record cannot be found after diligent search.” It is emphasized that when a certification is requested, an agency “shall” prepare the certification; it is obliged to do so.
Third, it is our opinion that records or minutes of executive sessions are not protected from disclosure pursuant to state or federal statute. In its denial of access, TRS relies on a judicial decision from 1997 in which the court held that a tape recording of an executive session is exempt from FOIL under §87(2)(a), Wm. J. Kline & Sons v. County of Hamilton (235 AD2d 44, 663 NYS2d 339 [3rd Dept 1997]). We disagree with TRS’ reliance on this determination for multiple reasons.
Primarily, there is no state or federal law that we know of that makes a discussion in executive session “confidential.” Much like the Freedom of Information Law, the Open Meetings Law is based on a presumption that all discussions pertaining to public business and involving a quorum of members of a public body except or unless there is grounds for entry into executive session and a majority of the members vote affirmatively. The decision to enter into executive session is entirely discretionary, as is the authority of an agency to deny access to records under the exceptions to FOIL. If there is a state or federal statute that makes a record “confidential” it is typically prohibited from being disclosed except to certain narrowly defined individuals. If there is a state or federal statute that makes a discussion “confidential”, such discussion, and in fact the entire gathering of the quorum at which the discussion is held is exempt from Open Meetings Law pursuant to subsection (3) of §108, set forth in relevant part as follows:
“Exemptions. Nothing contained in this article shall be construed as extending the provisions hereof to:
1. judicial or quasi-judicial proceedings…
2. deliberations of political committees, conferences and caucuses….
3. any matter made confidential by federal or state law.”
For example, when a quorum of a public body meets with its attorney to request and receive legal advice, or discuss litigation strategy with its attorney, as the Board of Supervisors did in Wm. J. Kline & Sons, supra, such gathering is exempt from the Open Meetings Law. While there is sometimes confusion between permitted executive session discussion topics and those that are exempt, “exempt” means that the Open Meetings Law does not apply; there is no requirement to provide notice to the public, or to allow the public to witness and observe, and no requirement for a motion to enter into executive session from the public portion of a meeting.
Further, both the state’s highest court, the Court of Appeals, and federal courts in construing access statutes have determined that the characterization of records as “confidential” or “exempted from disclosure by statute” must be based on statutory language that specifically confers or requires confidentiality. As stated by the Court of Appeals:
“Although we have never held that a State statute must expressly state it is intended to establish a FOIL exemption, we have required a showing of clear legislative intent to establish and preserve that confidentiality which one resisting disclosure claims as protection” (Capital Newspapers v. Burns, 67 NY2d 562, 567, 505 NYS2d 576 ).
In like manner, in construing the equivalent exception to rights of access in the federal Act, it has been found that:
“Exemption 3 excludes from its coverage only matters that are:
specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.
“5 U.S.C. § 552(b)(3) (1982) (emphasis added). Records sought to be withheld under authority of another statute thus escape the release requirements of FOIA if – and only if – that statute meets the requirements of Exemption 3, including the threshold requirement that it specifically exempt matters from disclosure. The Supreme Court has equated ‘specifically’ with ‘explicitly.’ Baldridge v. Shapiro, 455 U.S. 345, 355, 102 S.Ct. 1103, 1109, 71 L.Ed.2d 199 (1982). ‘[O]nly explicit non-disclosure statutes that evidence a congressional determination that certain materials ought to be kept in confidence will be sufficient to qualify under the exemption.’ Irons & Sears v. Dann, 606 F.2d 1215, 1220 (D.C.Cir.1979) (emphasis added). In other words, a statute that is claimed to qualify as an Exemption 3 withholding statute must, on its face, exempt matters from disclosure in the actual words of the statute” (Reporters Committee for Freedom of the Press v. U.S. Department of Justice, 816 F.2d 730, 735 ; modified on other grounds, 831 F.2d 1184 ; reversed on other grounds, 489 U.S. 789 ; see also British Airports Authority v. C.A.B., D.C.D.C.1982, 531 F.Supp. 408; Inglesias v. Central Intelligence Agency, D.C.D.C.1981, 525 F.Supp, 547; Hunt v. Commodity Futures Trading Commission, D.C.D.C.1979, 484 F.Supp. 47; Florida Medical Ass’n, Inc. v. Department of Health, Ed. & Welfare, D.C.Fla.1979, 479 F.Supp. 1291).
In short, to be “exempted from disclosure by statute”, both state and federal courts have determined that a statute must leave no discretion to an agency: it must withhold such records.
In contrast, when records are not exempted from disclosure by a separate statute, both the Freedom of Information Law and its federal counterpart are permissive. Although an agency may withhold records in accordance with the grounds for denial appearing in §87(2), the Court of Appeals held that the agency is not obliged to do so and may choose to disclose, stating that:
“...while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provision contains permissible rather than mandatory language, and it is within the agency’s discretion to disclose such records...if it so chooses” (Capital Newspapers, supra, 567).
The same analysis is applicable in the context of the Open Meetings Law. While that statute authorizes public bodies to conduct executive sessions in circumstances described in paragraphs (a) through (h) of §105(1), again, there is no requirement that an executive session be held even though a public body has the right to do so. The introductory language of §105(1), which prescribes a procedure that must be accomplished before an executive session may be held, clearly indicates that a public body “may” conduct an executive session only after having completed that procedure. If a motion is made to conduct an executive session for a valid reason, and the motion is not carried, the public body could either discuss the issue in public or table the matter for discussion in the future.
Please note that while it is our opinion that minutes of executive sessions are not “confidential” pursuant to state or federal law, they are, as TRS has mentioned, intra-agency records and would likely contain material that could be withheld from disclosure. Were the matter to be brought to court, the burden of proof would be on the agency, of course, to show how the records or portions thereof were protected.
Additionally, while we agree with TRS’ contention that consultant reports are intra-agency records, pursuant to the decision in Xerox Corporation v. Town of Webster (65 NY2d 131, 490 NYS2d 488 ), insofaras the reports contain “statistical or factual tabulations or data,” they would be required to be released, at least in part, pursuant to §87(2)(g)(i).
Finally, although not raised in either of its responses, TRS may have records of agreements regarding management fees with the above-mentioned firms. Some have argued that disclosure of such fee agreements would cause substantial injury to the competitive position of the firms or the funds, and would therefore not be required to be disclosed pursuant to §87(2)(d); however, we note news from California regarding the California Public Employee’s Retirement Systems’ disclosure of management fees it pays to individual venture capital, hedge, and other private equity funds in which it invests. See http://firstamendmentcoalition.org/2009/06/cfac-v-calpers/.
In this regard, the courts, and particularly the Court of Appeals, have clearly confirmed that in order to meet the burden of proof in denying access to records, agencies must provide “persuasive evidence” that disclosure would cause the harm envisioned by an exception to rights of access. Specifically in relation to §87(2)(d), an agency must demonstrate that disclosure would cause actual harm, rather than a “speculative conclusion that disclosure might potentially cause harm” (Markowitz v. Serio, 11 NY3d 43, 51, 862 NYS2d 833 ).
We hope this is helpful.