June 30, 2008


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.


            As you are aware, I have received you request for an advisory opinion concerning the ability of a school district to disclose charges filed pursuant to §3020-a of the Education Law against an employee who demanded a public hearing in accordance with subdivision (3)(c)(i) of that statute.  You added that the hearing had commenced and “the charges were already received into evidence prior to the time when they were released in response to a FOIL request for them by the local media.”

            From my perspective, a school district would have not only the ability to disclose the charges, but in addition, the obligation to do so to comply with the Freedom of Information Law.

            In this regard, first, §3020-a(3)(c)(i) of the Education Law states in relevant part that hearings conducted pursuant to that statute “shall be public or private at the discretion of the employee”, and that a “competent stenographer...shall keep and transcribe a record of the proceedings at each such hearing.”         

            Second, 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.  I note that the Court of Appeals has held that the Freedom of Information Law is permissive: although an agency may withhold records or portions of records in accordance with the exceptions to rights of access, it is not required to do so and may choose to disclose [see Capital Newspapers v. Burns, 67 NY2d 562 (1986)].  Therefore, a school district, in my opinion, has the authority to disclose charges initiated against a tenured person, even when it is not required to do so.

            Third, in my view, when a person charged chooses to require that hearing be public, he/she has effectively waived the district’s authority to withhold records that were received in evidence or otherwise disclosed during the course of the hearing.  In short, by opting to have a public hearing, the person charged has effectively permitted any person to be present to observe the proceeding, and to be aware of any information disclosed during the course of the proceeding.  That being so, records received into evidence, other information disclosed during a public hearing, and any transcript of a public hearing must be disclosed.  Even when records might ordinarily be withheld under the Freedom of Information Law, it has been held that there is no basis for denial once the records have been presented in a public judicial proceeding.  In Moore v. Santucci, 543, NYS2d 103, 151 AD2d 677 (1989), the Court found that:

“...while statements of the petitioner, his codefendants and witnesses obtained by the respondent in the course of preparing a criminal case for trial are generally exempt from disclosure under FOIL (see, Matter of Knight v Gold, 53 AD2d 694, appeal dismissed 43 NY2d 841), once the statements have been used in open court, they have lost their cloak of confidentiality and are available for inspection by a member of the public” [151 AD2d 677,679 (1989)].

In short, by disclosing the records in open court, a public disclosure would have already been made.  Once that occurs, nothing in the Freedom of Information Law would serve to enable an agency to deny access to that record.

            The same principle was confirmed in a decision rendered by the Court of Appeals, Herald Company v. Weisenberg [58 NY2d 378 (1983)] relating to an administrative hearing.  As indicated above, §3020-a of the Education Law provides a person charged with the option of having a public or private hearing.  In other circumstances, those in which there is no statutory direction concerning whether a hearing is to be conducted in public or private, the Court determined that administrative and quasi-judicial proceedings are presumptively open to the press and the public.  Based on its finding that a particular hearing was improperly closed, the court directed, with certain conditions pertinent the facts, that a transcript of the proceeding must be disclosed.

            For the reasons expressed in the preceding commentary, I believe that a school district is required to disclose records received in evidence, including the charges and a transcript, in a §3020-a proceeding conducted open to the public at the direction of the subject of the proceeding.

            I hope that I have been of assistance.



                                                                                                Robert J. Freeman
                                                                                                Executive Director