July 2, 1993
Mr. John P. Schamel
NEA/New York Field Representative
Elmira Service Center
Mark Twain Building
200 North Main and West Gray
Elmira, NY 14901
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 Mr. Schamel:
I have received your letter of June 15 in which you requested an advisory opinion pertaining to the Open Meetings Law.
The issue relates to an improper practice hearing before the Public Employment Relations Board. You wrote that:
"In cross-examining the superintendent of schools [you were] attempting to obtain information concerning the union which he had shared with the board of education in executive session. The district's representative objected to the testimony of the superintendent concerning what was or was not said in executive session stating that executive session had a certain confidentiality to it and that the superintendent could not be made to testify as to the remarks he made or board members made in executive session. The administrative law judge sustained the district's position and would not allow the superintendent to state what he had said to the board members in executive session."
It is your view that an "executive session is not protected by confidentiality", and you asked "whether or not information in general that is revealed in executive session and specifically the example [you] have set forth above has some type of protection from being revealed in testimony before an administrative agency or before an arbitrator."
In this regard, I offer the following comments.
First, as you suggested, the Open Meetings Law is permissive. While that statute authorizes public bodies to conduct executive sessions in circumstances described in paragraphs (a) through (h) of §105(1), there is no requirement that an executive session be held even though a public body has the right to do so. Further, the introductory language of §105(1), which prescribes a procedure that must be accomplished before an executive session can be held, clearly indicates that a public body "may" conduct an executive session only after having completed that procedure. If, for example, 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.
Second, while information might have been obtained during an executive session properly held or from records characterized as "confidential", the term "confidential" in my view has a narrow and precise technical meaning. For records or information to be validly characterized as confidential, I believe that such a claim must be based upon a statute that specifically confers or requires confidentiality.
For example, if a discussion by a board of education concerns a record pertaining to a particular student (i.e., in the case of consideration of disciplinary action, an educational program, an award, etc.), the discussion would have to occur in private and the record would have to be withheld insofar as a public discussion or disclosure would identify the student. As you may be aware, the Family Educational Rights and Privacy Act (20 USC §1232g) generally prohibits an agency from disclosing education records or information derived from those records that are identifiable to a student, unless the parents of the student consent to disclosure. In the context of the Open Meetings Law, a discussion concerning a student would constitute a matter made confidential by federal law and would be exempted from the coverage of that statute [see Open Meetings Law, §108(3)]. In the context of the Freedom of Information Law, an education record would be specifically exempted from disclosure by statute in accordance with §87(2)(a). In both contexts, I believe that a board of education, its members and school district employees would be prohibited from disclosing, absent the consent of the parents of a student, because a statute requires confidentiality. However, no statute of which I am aware would generally confer or require confidentiality with respect to the matters discussed during executive sessions.
In a situation similar to that described in your letter, in which the issue was "whether discussions had at an executive session of a school board are privileged and exempt from disclosure", it was held that "there is no statutory provision that describes the matter dealt with at such a session as confidential or which in any way restricts the participant from disclosing what took place" (Runyon v. Board of Education, West Hempstead Union Free School District No. 27, Supreme Court, Nassau County, January 29, 1987).
In short, unless a statute specifically prohibits disclosure of certain information or records, I do not believe that statements made during an executive session or information derived from an executive session could be characterized as "confidential" or that there would be a valid basis for sustaining a claim of confidentiality in the kind of hearing that you described.
I hope that I have been of some assistance.
Robert J. Freeman
cc: John Crotty, Counsel