the last colle tive bargsining agreement was digned in 2008
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FOI-AO-18882
May 4, 2012
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
Dear :
I have received your letter in which you sought “reconsideration” of an advisory opinion of April 5 addressed to Mr. David Klein by Camille Jobin-Davis, the Assistant Director of the Committee on Open Government.
The following remarks will not constitute reconsideration of that opinion, but rather a clarification of our views concerning the issues that were raised.
It is noted at the outset that some have characterized the response by Ms. Jobin-Davis as a “ruling.” In short, this office is not empowered to issue rulings that are binding on government agencies. Rather, both the Freedom of Information and Open Meetings Law authorize the preparation of advisory opinions. It is our hope that opinions rendered by this staff are educational and persuasive, and that they encourage knowledge of and compliance with open government laws. In this instance, if you or school district officials disagree with our opinions, the opinions need not be heeded.
One of the issues involves rights of access records concerning the “details of negotiations that led to impasse” between the Lake George Central School District and “the teachers union.” The District denied the request on the basis of §87(2)(c) of the Freedom of Information Law, which permits an agency to withhold records insofar as disclosure “would impair present or imminent contract awards or collective bargaining negotiations…” In her response, Ms. Jobin-Davis focused on a judicial decision concerning records that had been exchanged by both parties to contract negotiations. Because the content of the content of those records was known to both parties, and both had possession of the records at issue, this office had advised, and the court agreed, that since there was “no inequality of knowledge” regarding those records, disclosure would not “impair” the negotiations.
As a general matter, it is our view that the purpose of §87)(2)(c) in the context of collective bargaining is to avoid placing a government agency at a disadvantage when engaging in a negotiation process. Again, when both parties have the same records, the bargaining table is balanced, and neither party would benefit or be impaired via disclosure. On the other hand, when records are kept and known by only one party to the negotiations, the result would likely be different. If, for instance, an internal memo known only to agency officials detailed the agency’s strategy in negotiations, disclosure to the other party to the negotiations would result in disadvantage to the agency and a cost that would likely be borne by taxpayers.
With respect to the records sought by Mr. Klein, Ms. Jobin-Davis’ opinion that the records should be disclosed dealt only with those records exchanged between and known by both the District and the union. The opinion did not deal with internal communications between or among District officials and or staff, or internal communications with its attorneys. The internal communications would constitute “intra-agency materials” falling within the coverage of §87(2)(g) of the Freedom of Information Law, one of the exceptions to rights of access. It has been held that intra-agency materials consisting of advice, opinion, recommendation, conjecture, questions and the like may be withheld. Additionally, communications between District officials or staff and their attorneys involving legal advice or opinions fall within the scope of the attorney-client privilege and would be exempt from disclosure under §87(2)(a) of the Freedom of Information Law pertaining to records that are “specifically exempted from disclosure by state or federal statute.”
In short, it is reiterated that the opinion advised that materials known to both parties should be disclosed. However, the internal kinds of communications described in the preceding paragraph would be deniable.
Lastly, we have received several calls and email messages from residents who objected to the disclosure of their email addresses. Our understanding is that the email addresses were acquired from those who attended a public forum sponsored by the District, and that those who attended were residents and that attendance was not limited to parents of students.
We have discussed access to email addresses on many occasions, and our belief is that today, in 2012, it has become difficult to justify denying access to those addresses. As you know, the Freedom of Information Law permits an agency to withhold records or portions of records the disclosure of which would constitute “an unwarranted invasion of personal privacy” [§§87(2)(b) and 89(2)(b)]. That standard is subject to conflicting interpretations and, in some instances, societal standards and expectations may result in one response today and a different response in the future. Further, there are generational differences in views regarding privacy. In the era of Facebook and frequent texting, it has become clear that our children are often willing to disclose information about themselves that we would not disclose about our lives.
It is emphasized that when an agency denies access and the denial is challenged in court, the agency has the burden of proof. It must demonstrate that disclosure would indeed result in an unwarranted invasion of privacy. It is our belief that it has become increasingly difficult to meet the burden defending secrecy. Email addresses do not themselves include intimate, highly personal information, i.e., one’s religion, physical characteristics, medical or financial information. Many email addresses, including my own, cannot an identify individual because many of us use addresses that consist of words, or a series of letters or numbers that do not lead to our names or addresses. If the District denies access to the list of email addresses, and the judge asks to inspect the list in camera, in private, sees an email address like mine, and asks the attorney, “whose email address is this?”, the attorney would be unable to inform the court of my identity. That being so, how could disclosure result in an unwarranted invasion of personal privacy? It has also been suggested that an email address is equivalent to a telephone number. The distinction is that the telephone rings, which creates an interruption. When we receive email, if we are unaware of the source, or even if we know the source, we can ignore, delete or automatically route it into the “trash” folder; the nature of the intrusion is not as significant as in the situation in which a telephone rings.
You recently informed me that the District has a list of email addresses of parents of students. As we discussed, the federal Family Educational Rights and Privacy Act (“FERPA”; 20 USC §1232g) prohibits disclosure of those addresses, because the identities of students could become known, unless a parent consents to disclosure, or the email addresses are included as part of directory information. You indicated that the District has no directory information policy. That being so, insofar as email addresses were collected from parents of students who responded as parents, I believe that the District is precluded from disclosing those email addresses absent consent by a parent.
For the reasons described above, we have felt to compelled to advise that justifying a denial of access to email addresses, other than those that cannot be disclosed based on FERPA, in consideration the obligation to meet the burden of proof, would be difficult today, and likely more so as time progresses. Again, the opinions rendered by this office are just that, and the District could choose to deny access to email addresses and face the unlikely possibility of defending a denial of access in court. I suggest that a lawsuit would be unlikely because the request was made by a candidate for the Board of Education, and by the time the proceeding could be heard, the election will have passed.
I hope that the preceding remarks will serve to clarify our views regarding the opinion previously rendered.
cc: Board of Education
Patrick Dee, Superintendent
Will Doolittle, Post-Star
Patrick Dee, Superintendent
Will Doolittle, Post-Star
Sincerely,
Robert J. FreemanExecutive Director
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