December 28, 1994



Hon. Guy Thomas Cosentino
City of Auburn
Memorial City Hall
24 South Street
Auburn, NY 13021-3892

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.

Dear Mayor Cosentino:

I have received your letter of December 2 and appreciate your kind words. Please accept my apologies for the delay in response.

The first issue that you raised involves "an anonymous donation that the City received to clean up a property that was ravaged by fire." Since the donor does not wish to be identified, you have asked whether you can "keep the donor's identity confidential."

In my opinion, you may do so. Although the Freedom of Information Law provides broad rights of access, §87(2)(b) enables an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." Additionally, §89(2) provides a series of examples of unwarranted invasions of privacy, two of which in my opinion may be cited to justify the withholding of identifying details pertaining to the donor. Section 89(2)(b) states in part that unwarranted invasion of personal privacy includes but shall not be limited to:

"...iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it.

v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency." In conjunction with subparagraph v. in particular, the anonymous character of the donation represents information of a personal nature; the donation was apparently made in confidence; and the identity of the donor has no impact on and is irrelevant to the City's duties.

The second issue involves "an annual small social gathering [you] host at [your] house between City Council members and the County Legislators who represent City districts." You have asked whether that gathering must be open to the public.

From my perspective, if the sole intent of the gathering is to socialize, the Open Meetings Law would not apply. As you are likely aware, the Open Meetings Law pertains to meetings of public bodies, and the courts have interpreted the term "meeting" expansively. In a landmark decision rendered in 1978, the state's highest court, the Court of Appeals, held that any gathering of a quorum of a public body for the purpose of conducting public business constitutes a "meeting" subject to the Open Meetings Law, whether or not there is an intent to take action, and regardless of the manner in which a gathering may be characterized [see Orange County Publications, Division of Ottoway Newspapers, Inc. v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)]. In my opinion, inherent in the definition of "meeting" is the notion of intent. If a majority of a public body gathers in order to conduct public business collectively, as a body, I believe that such a gathering would constitute a "meeting" subject to the Open Meetings Law. In the decision cited earlier, the Court affirmed a decision rendered by the Appellate Division which dealt specifically with so-called "work sessions" and similar gatherings during which there was merely an intent to discuss, but no intent to take formal action. In so holding, the court stated:

"We believe that the Legislature intended to include more than the mere formal act of voting or the formal execution of an official document. Every step of the decision-making process, including the decision itself, is a necessary preliminary to form action. Formal acts have always been matters of public records and the public has always been made aware of how its officials have voted on an issue. There would be no need for this law if this was all the Legislature intended. Obviously, every thought, as well as every affirmative act of a public official as it relates to and is within the scope of one's official duties is a matter of public concern. It is the entire decision-making process that the Legislature intended to affect by the enactment of this statute" (60 AD 2d 409, 415).

With respect to social gatherings or chance meetings, it was found that:

"We agree that not every assembling of the members of a public body was intended to be included within the definition. Clearly casual encounters by members do not fall within the open meetings statutes. But an informal 'conference' or 'agenda session' does, for it permits 'the crystallization of secret decisions to point just short of ceremonial acceptance'" (id. at 416).

In view of the foregoing, if members of a public body meet by chance or at a social gathering, for example, I do not believe that the Open Meetings Law would apply, for there would be no intent to conduct public business, collectively, as a body. However, if, by design, the members of a public body seek to meet to discuss public business, formally or otherwise, I believe that a gathering of a quorum would trigger the application of the Open Meetings Law, for such gatherings would, in my opinion, constitute "meetings" subject to the Law. If less than a quorum is present, the Open Meetings Law would not, in my opinion, be applicable.

In short, if the gathering that you described is held to socialize and celebrate the season, and with no intent to discuss or conduct public business, I do not believe that the Open Meetings Law would be applicable.

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