December 6, 1996
Mr. William Watson
771 Fletcher Street
Tonawanda, NY 14150
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 Mr. Watson:
I have received your letter of October 21, as well as the news article attached to it.
It appears that you serve as a member of the City of Tonawanda Board of Education, which recently held an executive session to discuss the fact that a "class 3 sex offender" lived in the City of Tonawanda. You indicated that information concerning the sex offender was distributed to Board members, including that person's name, address and description. Also discussed were procedures for informing staff of the matter, that "the Board would not be informing parent[s]", and that "the individual had four convictions." According to the newspaper article, the individual is a "level 3 risk classification, meaning his records are available only through the local police agency." Further, the Chief of Police indicated that "the guidelines for releasing information make it difficult to inform the public."
You have asked whether the executive session was validly held and whether a board of education may "legally discuss the name, address, description, and record of convictions of a sex offender in open session."
In this regard, I offer the following comments.
First, with respect to the propriety of the executive session, it is my view that most and perhaps all of the session as you described it should have been conducted in public. As you may be aware, paragraphs (a) through (h) of §105(1) of the Open Meetings Law specify and limit the subjects that may properly be considered during an executive session. While two of the grounds may be pertinent to the matter, it is questionable whether either could properly have been asserted.
Section 105(1)(a) permits a public body to enter into executive session to discuss "matters which will imperil the public safety if disclosed." Although I am unaware of the specific nature of the Board's discussion, it might be contended that public discussion would improve or enhance public safety by enabling school officials and the public to be alert. The other provision of possible significance, §105(1)(f), enables a public body to conduct an executive session to discuss "the medical...history of a particular person..." Insofar as the Board considered the psychological profile or characteristics of a parolee, it would appear that the executive session would have been proper. However, insofar as the Board discussed policies and procedures or whether to inform staff or parents of the matter, it is unlikely in my opinion that there would have been a valid basis for entry into executive session.
Second, as you may be aware, Article 6-C of the Correction Law, the Sex Offender Registration Act, also known as "Megan's Law", includes certain public notification provisions applicable when a convicted sex offender is paroled. The validity of those provisions has been challenged in federal court, and in order to learn more of the matter, I contacted the assistant attorney general who is representing the State in the proceeding. In brief, there is in effect at this time a court order that prohibits law enforcement agencies in New York from making the disclosures envisioned by the public notification provisions. You did not indicate the means by which the District acquired information pertaining to the sex offender. As I understand the effect of the court order, the District could not have obtained the information from a law enforcement agency pursuant to the public notification procedures.
However, the District might have acquired information pertaining to a paroled sex offender appropriately from public sources. For instance, court records would contain much of the same information as that envisioned by Megan's Law. Similarly, if a sex offender is given a level three designation and challenges the designation, a public hearing is held to determine the propriety of the designation, and the public has the ability to obtain information via that hearing.
Assuming that the District acquired information pertaining to the parolee through valid means, such as those described in the preceding paragraph, it would have the authority to disclose the information as it sees fit. Further, since the court order prohibiting disclosure applicable to law enforcement agencies does not apply to the District, it is my understanding that the Board would not be prohibited from discussing the details pertaining to the sex offender during an open meeting. I hope that I have been of assistance.
Robert J. Freeman