I continue to be amazed by how wrong government attorneys are in the legal advice they provide regarding Freedom of Information laws (FOIL). The latest example of this is the opinion rendered by a Buffalo School District attorney. School board member Jason McCarthy recently asked at a board meeting whether several upper level district employees received large raises. As reported in the Buffalo News:
“When McCarthy asked to see these staff members’ employment contracts with the district, he was told he couldn’t have it, and that the board would have to vote to allow him to receive it”.
A school district attorney at a board meeting stated that McCarthy nor any of the other members could not be provided copies of the employment contracts because ”it’s part of their personnel file.”
“That is absolutely wrong,” said Robert Freeman, the executive director for the New York State Committee on Open Government. “There is absolutely no doubt that a contract between a public employer and a public employee is public.”
According to Mr. Freeman, there are several other myths or misunderstandings that people frequently have about Freedom of Information issues:
Myth: Characterizing a record as “draft,” a “work in progress” or “unofficial” enables a government agency to automatically deny access to the record.
Reality: FOIL pertains to all government agency records and defines the term “record” to include any information, in any physical form whatsoever, kept, held, filed, produced or reproduced by with or for a government agency. Often drafts or works in progress include statistical and factual information that is available to the public. When a record comes into the possession of an agency, whether it is deemed “official” or “accepted” is irrelevant; it is subject to rights conferred by FOIL. Also, minutes of meetings must be made available, even if they haven’t been approved.
Myth: Stamping or marking a record “confidential” enables the government to withhold it.
Reality: Under the New York FOIL, marking or agreeing to keep a record “confidential” is meaningless. In brief, FOIL says that all government records are accessible, unless the records may be withheld based on a series of exceptions to rights of access listed in the law. The law determines what’s public and what’s not, not an agreement or claim of confidentiality.
Myth: Personnel records are confidential and discussions involving personnel matters can be discussed in closed or “executive” sessions of government bodies.
Reality: The word “personnel” cannot be found in either the FOIL or the Open Meetings Law. Although some aspects of personnel records pertaining to government officers or employees may be withheld, others are accessible under FOIL, particularly those that relate to their duties, such as salary, overtime, attendance, disciplinary action, etc. Similarly, personnel matters involving policy or the allocation of public money (i.e., whether to create or eliminate a position) must be discussed in public. Only when an issue focuses on a particular person in relation to one or more among a series of qualifiers (i.e., a discussion of a specific individual’s performance) would there be a basis for going into a closed session to discuss a personnel matter.
Myth: Records involving litigation are confidential and government officials cannot discuss litigation.
Reality: When records are submitted to a court because a lawsuit has been initiated, the records are generally available from the court. With respect to meetings of government bodies, the courts have held that a closed meeting may be held by those bodies to discuss their litigation strategy in private, so as not to divulge their strategy to their adversaries. They have also held, however, that the mere threat, the fear or the possibility of litigation is not enough to justify holding a closed meeting.