OML-AO- 4822

September 28, 2009



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.


We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to a request for records made to the Village of Tupper Lake. Specifically, you requested records pertaining to a mediation agreement proposed by an applicant to the Adirondack Park Agency, including:

“1. A copy of the resolution passed by a vote of the Village Board members in support of the ACR ‘mediation agreement’.

2. Copies of the confidentiality agreements that were signed by each Village Board member prior to their review of the text of the ACR ‘mediation agreement’.

3. A complete copy of the ACR ‘mediation agreement’ document.

4. A list of all records and materials held by the Village relating to the ACR ‘mediation agreement’.”

The Village provided a copy of the resolution in response to the first request, and denied the remainder of the request on the grounds that the Village is “bound by the Confidentiality Agreement signed by all parties to the adjudicatory hearing process imposed by the Administrative Law Judge O’Connell”, “as inter-agency materials which contains advisory or agency recommendations, not including factual or statistical information, and not final in its determination”, and based on US v. Glens Falls Newspapers, Inc., 160 F3d 853, NYS Committee on Open Government AO 10530, and Daily News Pub Co. of Memphis. Tenn. v. Office of Court Admin. of State of NY, 718 NYS2d 800.

On appeal, the Village confirmed the denial and further indicated as follows:

“The Village is required to adhere to the Confidentiality Agreement to which it agreed to be bound, along with the other parties to the mediation, as part of the mediation protocol as administered by the Administrative Law Judge Daniel P. O’Connell.”

“This is a confidential settlement negotiation discussed during [a] proceeding over which Judge O’Connell, acting as mediator, presided. For purposes of these mediation proceedings, Judge O’Connell was a member of the judiciary and those confidential settlement negotiations shall be kept confidential, not subject to production under the Freedom of Information Law. Following the conclusion of the mediation, it was reiterated to the parties that those matters discussed and/or documents produced during the mediation shall remain confidential. Not only does Judge O’Connell feel that these discussions must remain confidential, but it was with the understanding that all discussions would be kept confidential, that all of the parties signed the Confidential Agreement at issue.”

Last year, in conjunction with an advisory opinion issued to the Adirondack Park Local Government Review Board, we received a copy of a document entitled “Mediation Protocol” from the Adirondack Park Agency (enclosed). As you will see, it is our opinion that to the extent that there are provisions of the Mediation Protocol that conflict with the Freedom of Information Law and the Open Meetings Law, they would be unenforceable.

With respect to the specific issues that you raised regarding access to confidentiality agreements and documents that Village Board members may have received, we offer the following comments.

As a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in '87(2)(a) through (j) of the law.

Perhaps most pertinent here is '87(2)(g), which 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 our view be withheld.

Accordingly, we believe that agreements between Board members and a state agency fall within §87(2)(g). To the extent that such agreements detail factual information, i.e., that they memorialize the terms of an agreement between two agencies, or represent an outcome or culmination of negotiations, they would constitute final agency determinations, and we believe that they must be disclosed pursuant to subparagraphs (i) and (iii) of §87(2)(g) respectively. To the extent that an agreement has been executed between an agency and entities other than “agencies” [see definition of “agency”, §86(3)], it would not constitute an inter-agency record, and §87(2)(g) would not serve as a basis for denial of access.

Significantly, it has been held in a variety of circumstances that a promise or assertion of confidentiality cannot be upheld, unless a statute specifically confers confidentiality. In Gannett News Service v. Office of Alcoholism and Substance Abuse Services [415 NYS2d 780 (1979)], a state agency guaranteed confidentiality to school districts participating in a statistical survey concerning drug abuse. The court determined that the promise of confidentiality could not be sustained, and that the records were available, for none of the grounds for denial appearing in the Freedom of Information Law could justifiably be asserted. In a decision rendered by the Court of Appeals, it was held that a state agency's:

"long-standing promise of confidentiality to the intervenors is irrelevant to whether the requested documents fit within the Legislature's definition of 'record' under FOIL. The definition does not exclude or make any reference to information labeled as 'confidential' by the agency; confidentiality is relevant only when determining whether the record or a portion of it is exempt..." [Washington Post v. Insurance Department, 61 NY2d 557, 565 (1984)].

In view of the judicial precedent cited above, a promise or agreement regarding confidentiality cannot be sustained when the grounds for denial of access appearing in the Freedom of Information Law cannot justifiably be asserted.

The Village relied on certain judicial decisions and a previous opinion of the Committee in support of its position that the records are not required to be released. We believe that the decisions and opinion can be distinguished from the situation here.

In the federal case on which the Village relies, US v. Glens Falls Newspapers, Inc., (160 F3d 853 [1998]), the court determined that settlement negotiations, including documents exchanged during settlement negotiations between named parties to litigation pending in the district court could be kept confidential subsequent to a trial court “consent order” which was in keeping, the court found, with the court’s rules. The Northern District Court of New York’s Local Rule 5.7, “Documents to be Provided to the Clerk”, states that “All pretrial and settlement conference statements shall be provided to the Clerk but not filed. These documents are not for public view.” The court determined that the trial court judge had properly weighed the interests of the litigants when it issued the consent order that required confidentiality of settlement documents in draft form, in a manner consistent with federal court rules.

The court further relied on the discretionary authority of the Town, pursuant to the Open Meetings Law, to discuss pending litigation in executive session [Open Meetings Law, §105(1)(d)], and incorrectly, in our opinion, referred to that authority as support for the contention that records related to such settlement negotiations are confidential by statute. The Open Meetings Law, in our view, does not prohibit a public body from discussing pending litigation in public, but rather permits a public body to do so in private. The ability of the Board to conduct an executive session, as opposed to the obligation to do so, in our opinion, cannot be equated to or serve as a statutory basis for ensuring the confidentiality of records obtained or reviewed during an executive session. There are innumerable instances in which records discussed during executive sessions are accessible under the Freedom of Information Law. In short, the provisions that permit (but do not require) entry into executive session in the Open Meetings Law are not necessarily congruent with the grounds permitting (but not ordinarily requiring) an agency to withhold records pursuant to the Freedom of Information Law. This is not intended to suggest that such disclosures would be wise or in the public interest in every instance, but rather, again, that there is no basis in law for prohibiting a person present during an executive session from speaking about that closed session or from disclosing records obtained, reviewed or considered during that session. To gain a more detailed explanation of our opinion, see Committee on Open Government Open Meetings Law Advisory Opinion 3929a enclosed.

Unlike the situation in US v. Glens Falls Newspaper, there is no pending litigation here. There are no judicial or court rules of which we are aware that make records that are shared with the Village with respect to its voluntary participation in a mediation process confidential, and to date, we have not been informed of a court order that would prohibit the voluntary participants from disclosing records received in conjunction with the mediation process. As we understand that process, it is an element of the adjudicatory hearing procedure over which an administrative law judge presides, and a non-binding method to assist in the resolution of conflicts regarding a permit application; it is not litigation in the sense that, at the end of the process, the parties are bound by a judicial determination.

The New York County case, Daily News Pub Co. of Memphis. Tenn. v. Office of Court Admin. of State of NY, 186 Misc.2d 424, 718 NYS2d 800 (2000), holds that a database of information compiled from court records is not publicly available merely because it is housed at the Office of Court Administration, an agency subject to the Freedom of Information Law. The issue in that case involved access to records of or pertaining to a court, an entity that is not subject to the Freedom of Information Law. Moreover, it was later unanimously held by the Court of Appeals that records emanating from a court that come into the possession of an agency are agency records subject to the Freedom of Information Law [Newsday v. Empire State Development Corp., 98 NY2d 359 (2002)].

We note that the particular advisory opinion on which the Village relies pertains to student academic records that were admitted as evidence in a judicial proceeding and became part of the court record (Freedom of Information Law Advisory Opinion 10530). The Family Educational Rights and Privacy Act (FERPA) prohibits the disclosure of records identifiable to students, except when the parents of the minor student or a student who has reached the age of 18 has waived confidentiality. In the opinion, we pointed out that FERPA allows disclosure of records that are exempt from disclosure to the general disclosure for limited purpose, i.e., compulsory disclosure of a record in a judicial proceeding. We further indicated that in a situation in which records are made part of a court record, they may be available to the public, not pursuant to the Freedom of Information Law, but rather other statutes requiring the disclosure of court records. Accordingly, it remains our opinion that the Freedom of Information Law governs access to records obtained by the Village.

Finally, and in good faith, we admit that we are confused by the questions of access that have arisen with respect to participation by public bodies in the ACR mediation. To our knowledge, no court is yet involved, and an administrative law judge is not a “member of the judiciary” as characterized by the Village in its response to your request. While the Adirondack Park Agency has the authority to designate a person to preside over public hearings pursuant to Executive Law, Article 27, §800, et seq., §812 of the Executive Law sets forth the statutory authority of such person as follows:

“5. The agency, or member or designee thereof presiding at the hearing shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant documents and papers, including witnesses and documents requested by the parties.”

There appears to be no statute that provides an administrative law judge with the authority to order mediation proceedings closed, or to make records confidential that are required to be made available pursuant to the Freedom of Information Law.

We note that even the authority of a court to require confidentiality is limited. Section 216.1(a) of the Uniform Rules, NYS Trial Courts in civil actions states that:

“Except where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing by court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties. Where it appears necessary or desirable, the court may prescribe appropriate notice and opportunity to be heard.”

In sum, we know of no court order sealing records and continue to advise that the Freedom of Information Law, not a private agreement, governs rights of access.

On behalf of the Committee on Open Government we hope that this is helpful to you.



Camille S. Jobin-Davis
Assistant Director



cc: Hon. Michael Desmarais