October 28, 1999


Hon. Rose Mary Christian
City of Batavia
210 Swan Street
Batavia, NY 14020

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

Dear Councilwoman Christian:

I have received your letter of September 14 and the materials relating to it. According
to a newspaper article, the Batavia City Council President discussed various possible
outcomes of an "EPA settlement" before a meeting of the Rotary Club and indicated that the Council "discussed the landfill issue in closed session and would be talking about it publicly at its Sept.13 meeting." You expressed the belief that "he disclosed confidential information from [a] closed session" and asked whether he is "in violation of state law according to 805- a".

In this regard, some elements of the issue were addressed in an opinion addressed to
you on December 2, 1994. Nevertheless, I offer the following comments, some of which
were expressed in that opinion.

It appears that your reference to a statute involves §805-a of the General Municipal
Law, which states in subdivision (1)(b) that "no municipal officer or employee shall...disclose confidential information acquired by him in the course of his official duties or use such information to further his personal interests." From my perspective, the term "confidential" 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. Stated differently, an act of Congress of the State Legislature must forbid disclosure in order to characterize information as confidential.

While a variety of subjects may properly to discussed during executive sessions and
numerous records or portions thereof may validly be withheld under the Freedom of
Information Law, the ability to exclude the public from a meeting or withhold records does
not necessarily represent or signify a requirement of confidentiality. I note that both the Open Meetings Law and the Freedom of Information Law are permissive. Under §105 of the former, a public body, such as a city council, may enter into executive session to discuss one or more of the subjects appearing in paragraphs (a) through (h) of subdivision (1); there is no requirement that those subjects be discussed in executive session. Moreover, as you are aware, in order to conduct an executive session, a motion to do so must be made and carried by a majority vote of the total membership of a public body. If such a motion does not carry, even though a public body might have the authority to discuss an issue in executive session, it would not have the obligation to do so. Similarly, under the Freedom of Information Law, §87(2) provides that an agency may withhold records in accordance with the grounds for denial of access that follow. The State's highest court has found that an agency may choose to disclose records even though it has the ability to deny access [see Capital Newspapers v. Burns, 67 NY 2d 562 (1986)].

In sum, as a general rule, even though discussions by a public body may in appropriate
circumstances be conducted in private and certain records may justifiably be withheld, the
matters considered might not be "confidential", but rather beyond the scope of public rights
of access. In a case in which the issue was whether discussions occurring during an executive session held by a school board could be considered "privileged", 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 participants 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). While §805-a of the General Municipal Law may be useful for providing guidance, for the reasons described above, I do not believe that the use of the term "confidential" is entirely clear.

Whether it is good, wise or ethical to divulge information acquired during an executive session may be questionable and subject to a variety of points of view; nevertheless,
unless a statute prohibits disclosure, I do not believe that doing so would constitute a
violation of law.

I hope that the foregoing serves to clarify your understanding of the matter and that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Hon. George Spinnegan