October 30, 1997
Ms. Eileen Boylan
Attorney at Law
9485 Melinda Drive
Clarence, NY 14031
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 Ms. Boylan:
As you are aware, I have received your letter of September 22.
You have asked that I review the proposed Code of Ethics concerning the Town of Clarence for the purpose of offering advice regarding the extent to which it relates to the Freedom of Information and Open Meetings Laws.
In this regard, having reviewed the Code, there are several circumstances in which I offer a technical, legal response. Nevertheless, in many of those situations, while the proposed Code might in my view misuse a particular term, the impact of the use of that term might be the same as if the Freedom of Information Law and Open Meetings Law applied.
First, there are references in the proposed Code in several instances to confidentiality. From my perspective, an assertion or claim of confidentiality, unless it is based upon a statute, is likely meaningless. When confidentiality is conferred by a statute, records fall outside the scope of rights of access pursuant to §87(2)(a) of the Freedom of Information Law, which states that an agency may withhold records that "are specifically exempted from disclosure by state or federal statute". If there is no statute upon which an agency can rely to characterize records as "confidential" or "exempted from disclosure", the records are subject to whatever rights of access exist under the Freedom of Information Law [see Doolan v.BOCES, 48 NY 2d 341 (1979); Washington Post v. Insurance Department, 61 NY 2d 557 (1984); Gannett News Service, Inc. v. State Office of Alcoholism and Substance Abuse, 415 NYS 2d 780 (1979)]. As such, an assertion of confidentiality without more, would not in my opinion guarantee or require confidentiality.
Moreover, it has been held by several courts, including the Court of Appeals, that an agency's regulations or the provisions of a local enactment, such as an administrative code, local law, charter or ordinance, for example, do not constitute a "statute" [see e.g., Morris v. Martin, Chairman of the State Board of Equalization and Assessment, 440 NYS 2d 365, 82 Ad 2d 965, reversed 55 NY 2d 1026 (1982); Zuckerman v. NYS Board of Parole, 385 NYS 2d 811, 53 AD 2d 405 (1976); Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)]. For purposes of the Freedom of Information Law, a statute would be an enactment of the State Legislature or Congress. Therefore, a local enactment cannot confer, require or promise confidentiality. This not to suggest that many of the records used, developed or acquired in conjunction with an ethics code must be disclosed; rather, I am suggesting that those records may in some instances be withheld in accordance with the grounds for denial appearing in the Freedom of Information Law, and that any local enactment that is inconsistent with that statute would be void to the extent of any such inconsistency.
It is likely in my view that two the grounds for denial would be particularly relevant with respect to records maintained by a board of ethics.
Section 87(2)(b) of the Freedom of Information Law authorizes an agency to withhold records when disclosure would result in an unwarranted invasion of personal privacy. Although the standard concerning privacy is flexible and may be subject to conflicting interpretations, the courts have provided substantial direction regarding the privacy of public employees. It is clear that public employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that public employees are required to be more accountable than others. With regard to records pertaining to public employees, the courts have found that, as a general rule, records that are relevant to the performance of a public employee's official duties are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d 562 (1986)]. Conversely, to the extent that records are irrelevant to the performance of one's official duties, it has been found that disclosure would indeed constitute an unwarranted invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov. 22, 1977].
Several of the decisions cited above, for example, Farrell, Sinicropi, Geneva Printing, Scaccia and Powhida, dealt with situations in which determinations indicating the imposition of some sort of disciplinary action pertaining to particular public employees were found to be available. However, when allegations or charges of misconduct have not yet been determined or did not result in disciplinary action, the records relating to such allegations may, in my view, be withheld, for disclosure would result in an unwarranted invasion of personal privacy [see e.g., Herald Company v. School District of City of Syracuse, 430 NYS 2d 460 (1980)]. Further, to the extent that charges are dismissed or allegations are found to be without merit, I believe that they may be withheld.
There may also be privacy considerations concerning persons other than employees who may be subjects of a board's inquiries. For instance, I believe that the name of a complainant or witness could be withheld in appropriate circumstances as an unwarranted invasion of personal privacy.
The other provision of relevance, §87(2)(g), states that an agency may withhold records that:
"are inter-agency or intra-agency materials which are not:
i. statistical or factual tabulations or data;
ii. instructions to staff that affect the public;
iii. final agency policy or determinations; or
iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."
It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld. Records prepared in conjunction with an inquiry or investigation would in my view constitute intra-agency materials. Insofar as they consist of opinions, advice, conjecture, recommendations and the like, I believe that they could be withheld. Factual information would in my view be available, except to the extent, under the circumstances, that disclosure would result in an unwarranted invasion of personal privacy.
In §19-11(b), reference is made to certain "documents considered confidential." Again, I do not believe that a town may render records "confidential." However, the kinds of records falling within the scope of the cited provision of the Code in most instances fall within one or more of the grounds for denial of access appearing in the Freedom of Information Law as described in the preceding commentary.
Second, as in the case of the Freedom of Information Law, insofar as a local enactment is more restrictive concerning access than the Open Meetings Law, I believe that it would be invalid. Section 110 of the Open Meetings Law, entitled "Construction with other laws," states in subdivision (1) that:
"Any provision of a charter, administrative code, local law, ordinance, or rule or regulation affecting a public body which is more restrictive with respect to public access than this article shall be deemed superseded hereby to the extent that such provision is more restrictive than this article."
Further, although the Open Meetings Law is based upon a presumption of openness and meetings of public bodies must generally by conducted open to the public, §105(1) of the Law includes grounds for entry for entry into executive session.
Relevant to the duties of a board of ethics is §105(1)(f) of the Law, which permits a public body to 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..."
If the issue before a board of ethics involves a particular person in conjunction with one or more of the subjects listed in §105(1)(f), I believe that an executive session could appropriately be held. For instance, if the issue deals with the "financial history" of a particular person or perhaps matters leading to the discipline of a particular person, §105(1)(f) could in my opinion be cited for the purpose of entering into an executive session.
In sum, while the use of the term "confidentiality" may be technically inaccurate, the outcome may be equivalent to that when the Open Meetings Law applies. In like manner, as suggested earlier, would conjecture that much of the material characterized as confidential in the city provision could be withheld under the Freedom of Information Law.
Third, subdivision (d) of §19-11 states that:
"It shall be a violation of this law to inspect or copy a publicly accessible document for any unlawful or commercial purpose including charitable or political solicitation."
In my opinion, if a record is available under the Freedom of Information Law, it would generally be available to any person, notwithstanding the intended use of the record, or one's status or interest [see e.g., Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1986) and M. Farbman & Sons v. NYC Health and Hospitals Corp., 62 NY 2d 75 (1984)]. The only instance in which the purpose for which a request is made bears upon rights of access would involve a request for a list of names and addresses. Section 89(2)(b)(iii) of the Freedom of Information Law provides that an unwarranted invasion of personal privacy includes the sale or release of a list of names and addresses if the list would be used for "commercial or fund-raising purposes." That situation in my view represents the only case in which the use of records may determine rights of access.
Lastly, §19-7(7) pertains to the Ethics Board and states in part that "A majority of the Ethics Board then appointed shall constitute a quorum." In my opinion, which is based upon §41 of the General Construction Law, a quorum must be majority of the total membership, notwithstanding vacancies. The cited provision states that:
"Whenever three of more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers, at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board of body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon reasonable notice to all of them, shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or dy. For the purpose of this provision the words 'whole number' shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were one of the persons or officers disqualified from acting."
The language quoted above refers to "the whole number" reflecting the membership of an entity, and that phrase is further described to mean the total number, notwithstanding vacancies, absences or disqualifications, for example.
I hope that I have been of assistance.
Robert J. Freeman
cc: Town Board