October 26, 2000
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
I have received your letter of September 12. You have asked for an advisory opinion
concerning a situation in which a member of a board of education "disagrees with a matter
being discussed in executive session" and whether that person is "entitled to breach
confidentiality" or opt to initiate an Article 78 proceeding to nullify any board action.
In this regard, I believe that the member of the board or any other person could initiate a judicial proceeding to challenge action taken by the board in accordance with §107 of the Open Meetings Law. Further, in general, I do not believe that what is said or heard during an executive session may be characterized as "confidential."
To put the issue in perspective, both the Open Meetings Law and the Freedom of
Information Law are permissive. While the Open Meetings Law 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 right to do so. Further, the introductory language of §105(1), which prescribes a
procedure that must be accomplished before an executive session may 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. Similarly, although the Freedom of
Information Law permits an agency to withhold records in accordance with the grounds for
denial, it has been held by the Court of Appeals that the exceptions are permissive rather than mandatory, and that an agency may choose to disclose records even though the authority to withhold exists [Capital Newspapers v. Burns], 67 NY 2d 562, 567 (1986)].
Even when information might have been obtained during an executive session
properly held or from records marked "confidential", I note that 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 instance, 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 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 educational 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, because a statute requires confidentiality. Again, however, no statute of which I am aware would generally confer or require confidentiality with respect to the matters discussed in executive session.
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 there may be no prohibition against disclosure of the information acquired
during executive sessions or records that could be withheld, the foregoing is not intended to
suggest such disclosures would be uniformly appropriate or ethical. Obviously, the purpose
of an executive session is to enable members of public bodies to deliberate, to speak freely
and to develop strategies in situations in which some degree of secrecy is permitted.
Similarly, the grounds for withholding records under the Freedom of Information Law relate
in most instances to the ability to prevent some sort of harm. In both cases, inappropriate
disclosures could work against the interests of a public body as a whole and the public
generally. Disclosure made contrary to or in the absence of consent by the majority could
result in unwarranted invasions of personal privacy, impairment of collective bargaining
negotiations or even interference with criminal or other investigations. In those kinds of
situations, even though there may be no statute that prohibits disclosure, release of information could be damaging to individuals and the functioning of government.
Nevertheless, if a discussion occurring during an executive session should clearly have been conducted in public, I do not believe that divulging the nature of the discussion would represent a breach of ethics.
I hope that I have been of assistance.
Robert J. Freeman