May 10, 1993



Ms. Katherine Better
7 Sylvester Street
Kinderhook, NY 12106

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.

Dear Ms. Better:

I have received your letter of April 27. In your capacity as a member of the Ichabod Crane School District Board of Education, you have requested an advisory opinion concerning issues described in the correspondence attached to your letter.

Your initial concern is expressed as follows:

"Unless of a highly confidential matters (such as a student's or employee's record) should we not as a Board be provided with any and all necessary information regarding a motion for Executive Session before voting? Then, on the basis of the information (as opposed to an 'idea' which is what we currently receive) we as a Board can make a public decision as to where the matter should be discussed (publicly or privately)."

The District's attorney, Melvin H. Osterman, wrote that the distribution of "confidential information" to Board members prior to meetings would increase the likelihood of an "inadvertent disclosure". He added, however, that "[c]ertainly the Board should be given at least enough information before each meeting to understand why a particular matter is being referred to Executive Session" and suggested that "the Board could adopt guidelines for what matters will be considered in Executive Session."

In this regard, as a general matter, in conjunction with the broad grant of powers and duties conferred upon boards of education by §1709 of the Education Law, I believe that a board of education has the authority to acquire information needed to carry out its official duties.

Among those duties is compliance with the requirements of the Open Meetings Law. From my perspective, members of a board of education, as well as the public generally, have the right to know whether an executive session will be properly held under the Open Meetings Law.

I point out that, in a technical sense, a public body cannot schedule an executive session in advance of a meeting. 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 total 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. Since a public body cannot know in advance of a meeting that a motion to enter into executive session will be approved, technically, an executive session should not be scheduled. I believe, however, that a public body could schedule a motion to enter into an executive session on its agenda.

In my opinion, information distributed prior to meetings and motions to enter into executive session should be sufficiently detailed to enable Board members, and, later, the public, to know that the subject matter intended to be discussed in an executive session falls within one or more of the grounds for entry into an executive session. Based upon the language of the Open Meetings Law and its judicial interpretation, motions to conduct executive sessions citing the subjects to be considered as "personnel", "litigation" or "negotiations", for example, without additional detail are inadequate. The use of those kinds of terms alone do not provide members of public bodies or members of the public who attend meetings with enough information to know whether a proposed executive session will indeed be properly held.

For instance, although it is used frequently, the term "personnel" appears nowhere in the Open Meetings Law. While one of the grounds for entry into executive session often relates to personnel matters, the language of that provision is precise. By way of background, in its original form, §105(1)(f) of the Open Meetings Law permitted a public body to enter into an executive session to discuss:

"...the medical, financial, credit or employment history of any person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of any person or corporation..."

Under the language quoted above, public bodies often convened executive sessions to discuss matters that dealt with "personnel" generally, tangentially, or in relation to policy concerns. However, the Committee consistently advised that the provision was intended largely to protect privacy and not to shield matters of policy under the guise of privacy.

To attempt to clarify the Law, the Committee recommended a series of amendments to the Open Meetings Law, several of which became effective on October 1, 1979. The recommendation made by the Committee regarding section 105(1)(f) was enacted and now states that a public body may enter into an 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 insertion of the term "particular" in §105(1)(f), I believe that a discussion of "personnel" may be considered, in an executive session only when the subject involves a particular person or persons, and only when one or more of the topics listed in §105(1)(f) are considered.

When a discussion concerns matters of policy, such as the manner in which public money will be expended or allocated, or when the issue bears upon a group of employees, I do not believe that §105(1)(f) could be asserted, even though the discussion relates to "personnel".

Moreover, due to the insertion of the term "particular" in §105(1)(f), it has been advised that a motion describing the subject to be discussed as "personnel" is inadequate, and that the motion should be based upon the specific language of §105(1)(f). 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 my opinion have to identify the person or persons who may be the subject of a discussion [see Doolittle v. Board of Education, Supreme Court, Chemung County, July 21, 1981; also Becker v. Town of Roxbury, Supreme Court, Chemung County, April 1, 1983]. 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. Absent such detail, neither the members nor others may be able to determine whether the subject may properly be considered behind closed doors.

Another ground for entry into executive session frequently cited relates to "litigation". Again, that kind of minimal description of the subject matter to be discussed would be insufficient to comply with the Law. The provision that deals with litigation is §105(1)(d) of the Open Meetings Law, which permits a public body to enter into an executive session to discuss "proposed, pending or current litigation". In construing the language quoted above, it has been held that:

"The purpose of paragraph d is "to enable is to enable a public body to discuss pending litigation privately, without baring its strategy to its adversary through mandatory public meetings' (Matter of Concerned Citizens to Review Jefferson Val. Mall v. Town Bd. Of Town of Yorktown, 83 AD 2d 612, 613, 441 NYS 2d 292). The belief of the town's attorney that a decision adverse to petitioner 'would almost certainly lead to litigation' does not justify the conducting of this public business in an executive session. To accept this argument would be to accept the view that any public body could bar the public from its meetings simply be expressing the fear that litigation may result from actions taken therein. Such a view would be contrary to both the letter and the spirit of the exception" [Weatherwax v. Town of Stony Point, 97 AD 2d 840, 841 (1983)].

Based upon the foregoing, I believe that the exception is intended to permit a public body to discuss its litigation strategy behind closed doors, rather than issues that might eventually result in litigation. Since legal matters or possible litigation could be the subject or result of nearly any topic discussed by a public body, an executive session could not in my view be held to discuss an issue merely because there is a possibility of litigation, or because it involves a legal matter.

With regard to the sufficiency of a motion to discuss litigation, it has been held that:

"It is insufficient to merely regurgitate the statutory language; to wit, 'discussions regarding proposed, pending or current litigation'. This boilerplate recitation does not comply with the intent of the statute. To validly convene an executive session for discussion of proposed, pending or current litigation, the public body must identify with particularity the pending, proposed or current litigation to be discussed during the executive session" [Daily Gazette Co. , Inc. v. Town Board, Town of Cobleskill, 44 NYS 2d 44, 46 (1981), emphasis added by court].

Similarly, with respect to "negotiations", the only ground for entry into executive session that mentions that term is §105(1)(e). That provision permits a public body to conduct an executive session to discuss "collective negotiations pursuant to article fourteen of the civil service law." Article 14 of the Civil Service Law is commonly known as the "Taylor Law", which pertains to the relationship between public employers and public employee unions. As such, §105(1)(e) permits a public body to hold executive sessions to discuss collective bargaining negotiations with a public employee union.

In terms of a motion to enter into an executive session held pursuant to §105(1)(e), it has been held that:

"Concerning 'negotiations', Public Officers Law section 100[1][e] permits a public body to enter into executive session to discuss collective negotiations under Article 14 of the Civil Service Law. As the term 'negotiations' can cover a multitude of areas, we believe that the public body should make it clear that the negotiations to be discussed in executive session involve Article 14 of the Civil Service Law" [Doolittle, supra].

In sum, I believe that Board members should acquire information prior to a meeting sufficient to have the capacity to comply with the Open Meetings Law, and that a motion to enter into an executive session must be sufficiently detailed to enable Board members and the public to know that the Board is acting in compliance with the Law. Further, while I am in general agreement with Mr. Osterman's commentary, I disagree with his suggestion that the Board might adopt "guidelines for what matters will be considered" during executive sessions. As indicated earlier, the grounds for entry into executive session are fixed by the Open Meetings Law. Consequently, any "guidelines" or policy that is more restrictive with respect to openness would be void and superseded by the Open Meetings Law [see Open Meetings Law, §110(1)]. Perhaps guidelines or standards could be developed regarding the nature or amount of material that should be distributed to members of the Board prior to its meetings to ensure that it can effectively carry out its duties in general and to ensure compliance with the Open Meetings Law.

The second area of concern relates to a letter that you addressed to the Superintendent in which you asked that he provide you and each member of the Board "with the total amount of money currently owed to [him] by the District", and a "complete breakdown of the accumulated costs." In your letter to the Superintendent, you indicated that you requested the information several times beginning in February and that the data would be useful in consideration of the budget.

It is unclear whether your letter constitutes a request made under the Freedom of Information Law or whether it was made individually or on behalf of an at the direction of the Board as a whole. In this regard, I am unaware of any statute that deals specifically with requests by members of boards of education for school district records or any unique authority that board members enjoy, individually, concerning their capacity to obtain copies of district records.

With respect to the Freedom of Information Law, that statute is, in my view, intended to enable the public to request and obtain accessible records. Further, it has been held that accessible records should be made equally available to any person, without regard to status or interest [see e.g., Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 75 (1976) and M. Farbman & Sons v. New York City, 62 NY 2d 75 (1984)]. Nevertheless, it is clear that records are requested in the performance of one's official duties, the request might not be viewed as having been made under the Freedom of Information Law. In such a situation, if a request is reasonable, and in the absence of a board rule or policy to the contrary, I believe that a member of a public body should not generally be required to resort to the Freedom of Information Law in order to seek or obtain records.

However, viewing the matter from a more technical perspective, one of the functions of a public body involves acting collectively, as an entity. A board of education, as the governing body of a public corporation, generally acts by means of motions carried by an affirmative vote of a majority of its total membership (see General Construction Law, §41). In my view, in most instances, a board member acting unilaterally, without the consent or approval of a majority of the total membership of the Board, has the same rights as those accorded to a member of the public, unless there is some right conferred upon a board member by means of law or rule. In such a case, a member seeking records could presumably be treated in the same manner as the public generally. When that is so, a request by a member of the Board could, in my opinion, be considered as a request made under the Freedom of Information Law by a member of the public.

Further, I point out that the Freedom of Information Law pertains to existing records. Section 89(3) of the Law states in part that an agency need not create a record in response to a request. Therefore, if no breakdown of costs exists, the Freedom of Information Law would not require that the Superintendent prepare such a record on your behalf.

I would conjecture, however, that the Superintendent and other employees routinely prepare records for the Board, particularly in the budget process, in order to enable the Board to carry out its duties. Even if no breakdown exists, as a service to the Board, it appears unlikely that the preparation of the records in question would represent a significant burden. Moreover, while the "total" or "breakdown" that you requested might not exist in a single record, presumably other records exist that could be used to prepare those records. In my view, those records would be accessible under the Freedom of Information Law. In brief, that statute 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 section 87(2)(a) through (i) of the Law. Based upon your description of the information, none of the grounds for denial could appropriately be cited to withhold the records. Once in receipt of the records, you or others could independently prepare a total or breakdown.

I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.



Robert J. Freeman
Executive Director


cc: Melvin H. Osterman
Jerome F. Callahan