Update on New York State Sunshine Laws: Open Meetings Law and Freedom of Information Law (FOIL)

1. Update on New York State Sunshine Laws:Open Meetings Law and Freedom of Information Law (FOIL) Faculty Senate Plenary January 27, 2006 D. Andrew Edwards, Jr., University Counsel Marti Anne Ellermann, Senior Managing Campus Counsel

2. Open Meetings Law • Public Officers Law §§100-111 • Every meeting of a “public body” must be open to the public. • “Public body” defined as “…any entity, for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof…”

3. SUNY Interpretation Open Meetings Law applies to SUNY Board of Trustees (and Committees thereof), Campus Councils, Boards of Trustees of Community Colleges. -Open Meetings Law does not apply to advisory bodies. -Open Meetings Law does not apply to non-SUNY entities i.e., ASCs, Foundations.

4. Perez v. CUNY Case Decided by NYS Court of Appeals November 17, 2005. Facts: Student denied entrance to Hostos Community College Senate meeting in which changes to the college curriculum were approved by secret ballot. Another student denied entrance to College Senate Executive Committee meeting to distribute a petition regarding an incident at a political protest on campus. Holding: The College Senate and its Executive Committee are exercising a “quintessentially governmental function.” (continued)

5. Perez v. CUNY Case (continued) Because, -Its charter mandates conduct of business only if a quorum is present; -College Senate charged with responsibilities delegated by the Legislature to the CUNY Board. It recommends policy on college matters to the Board, i.e., “on college admissions, degree requirements, curriculum design, budget and finance…” Even though CUNY Board can veto recommendations of College Senate, its role is not “purely advisory.”

6. What is an Open Meeting? • Meetings must be open to the public (when a quorum is present). • Prior notice of meetings. • Written minutes of meeting business. • Record maintained of final vote of each member of the public body on matters on which a vote is formally taken. • Also true for committees of the body.

7. What is an Open Meeting? (continued) • Executive sessions (closed to public) for limited purposes: one important category is “the medical, financial, credit or employment history of a particular person or corporation or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation.”

8. Are the University Faculty Senate and/or Campus Faculty Governance Organizations subject to the Open Meetings Law under Perez? -SUNY Counsel has previously opined that Open Meetings Law is not applicable to campus faculty senates. LT Robert Freeman in 1987. - Perez not directly applicable to SUNY. - Policies of the Board of Trustees delegate responsibilities to the University faculty (Article VI, §3): “The University faculty shall be responsible for the conduct of the University’s instruction, research and service programs.” Also (Article X, §4): The faculty of each College shall have the obligation to participate significantly in the initiation, development and implementation of the educational program.” But “all actions under bylaws shall be advisory upon the Chancellor and the chief administrative officer of the college.” - Difficulties of conducting compliant meetings.

9. Purpose of FOIL • Open Government • Right to Know Process of Gov’t Decision-Making • Government is the People’s • FOIL to be Liberally Construed • Exceptions to be Narrowly Interpreted

10. General FOIL Principles:Presumption of Accessibility • All agency records are accessible, except records (or portions thereof) that fall within one of 9 categories of deniable records (section 87(2) of NY Pub. Off. Law).

11. General FOIL Principles • Agency bears the burden of demonstrating the applicability of one of the enumerated exemptions.

12. General FOIL Principles: Definition of “Record” [§ 86(4)] • Any information kept, held, filed, produced or reproduced by, with or for an agency in any physical form whatsoever. • Tape recordings, microfilm and computer discs = record. • No obligation to create new records or answer questions.

13. General FOIL Principles: Exemptions Under § 87(2) of FOIL Documents that: • (a) are specifically exempted from disclosure by state or federal statute; • (b) would, if disclosed, result in an unwarranted invasion of personal privacy;

14. General FOIL Principles: Exemptions Under § 87(2) of FOIL Documents that: • (c) would, if disclosed, impair present or imminent contract awards or collective bargaining negotiations; • (d) are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise;

15. General FOIL Principles: Exemptions Under § 87(2) of FOIL • (e) are compiled for law enforcement purposes and which if disclosed would: • interfere with law enforcement investigations or judicial proceedings; • deprive a person of a right to a fair trial or impartial adjudication; • identify a confidential source or disclose confidential information relative to a criminal investigation; or • reveal criminal investigative techniques or procedures, except routine techniques and procedures;

16. General FOIL Principles: Exemptions Under § 87(2) of FOIL • (f) could if disclosed endanger the life or safety of any person; • (g) are inter-agency or intra-agency communications, except to the extent that such materials consist of: • statistical or factual tabulations or data; • instructions to staff that affect the public; • final agency policy or determinations; or • external audits, including but not limited to audits performed by the comptroller and the federal government;

17. General FOIL Principles: Exemptions Under § 87(2) of FOIL • (h) are examination questions or answers that are requested prior to the final administration of such questions; or • (i) if disclosed, would jeopardize an agency's capacity to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures; or • (j) are photographs, microphotographs, videotape or other recorded images prepared under authority of section eleven hundred eleven-a of the vehicle and traffic law.

18. Personal Privacy Exemption §89(2)(b) • Includes, but is not limited to: • i. disclosure of employment, medical or credit histories or personal references of applicants for employment; • ii. disclosure of items involving the medical or personal records of a client or patient in a medical facility;

19. Personal Privacy Exemption §89(2)(b) • iii. sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes; and • iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it;

20. Personal Privacy Exemption §89(2)(b) • v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency; and • vi. information of a personal nature contained in a workers’ compensation record, except as otherwise provided in the workers compensation law [§110(a)]. NOTE: If identifying details are removed, it is not an unwarranted invasion of personal privacy.

21. Personal Privacy Exemption §89(2)(b)CASES • Kwasnik v. City of NY (App. Div) • Records sought: public employment history of CUNY employees and dates of attendance at academic institutions • Court said that such information should be accessible if only because public employment is, by dint of FOIL itself, a matter of public record.

22. Personal Privacy Exemption §89(2)(b) Cases (Kwasnik – Cont.) • Dates of attendance at academic institutions had to be produced to demonstrate requisite qualifications for the job. • “Reasonable person of ordinary sensibilities.”

23. Personal Privacy Exemption • Resumes (How to respond) • Produce: • History of PUBLIC employment • Educational experience • List of publications, if any • Redact: • Other personal information like home address, private sector employment history, marital status, membership in organizations, hobbies and personal references

24. Personal Privacy Exemption • Accessible Personnel Records (Content Dependent) • Time sheets (sick time and accruals) • Dates of Public Employment • Titles and salaries • Conditions precedent for holding particular position • Certain work experience • Licenses • Certifications

25. Personal Privacy Exemption • Accessible Personnel Records (Cont.) • Performance appraisals – but only • Description of duties and/or criteria • Final rating (assuming any appeals have been exhausted) • EXCLUDE Reviewer’s subjective analysis of how well or poorly the individual performed may be withheld

26. Personal Privacy Exemption • Personnel Records Exempt from Disclosure • Grade point average • Home address • Social security number • Personal letters of reference • Medical information

27. Personal Privacy Exemption • Public officers and employees enjoy a lesser degree of privacy than others. • They are required to be more accountable than others. • Records relevant to the performance of their official duties are available – • Such disclosure constitutes a permissible rather than an unwarranted invasion of personal privacy.

28. Intra Agency Materials Exemption • This is intended to protect “deliberative process” of government. • Exceptions to the exception: • Statistical or factual tabulations or data • Instructions to staff that affect the public • Final agency policy or determinations • External audits

29. “Intra-agency” Exemptions: • Executive Law definitions (9 NYCRR § 6150.2) • “Statistical Tabulation”: a collection or orderly presentation of numerical data logically arranged in columns and rows • “Factual Tabulation”: a collection of statements of objective information logically arranged which is empirically derived and reflects objective reality, actual existence or an actual occurrence.

30. “Intra-agency” Exemptions: Accessibility of Date Under FOIL • If it is factual and statistical, it must be released even if not in final form. • No exception for data in draft or preliminary documents. • “Backup factual and statistical data” is disclosable. “The mere fact that some of the data might be an estimate or a recommendation does not convert it into an expression of opinion or naked argument for or against a certain position…” (Polansky v. Regan)

31. What Part of the Deliberative Process may be shielded? • Opinions, analyses and recommendations supported by the data if not part of the final decision. • What is a final decision? Not just decision of highest level of an agency: “at each stage of an often multi-level administrative process”. • Documents may be split to withhold parts. But, is this helpful for context?

32. What does this mean for Assessment Data???? • Statistical Tabulation of Data • Clearly Accessible under FOIL • Can’t: • Destroy • Withhold Data by Producing Summary Report of Findings • Can: • Produce any additional explanatory material

33. Obligation to Maintain Data • NYS Arts & Cultural Affairs Law §57.05 • Limits ability of state agency to destroy records. • Requires appropriate retention and destruction policy. • FOIL itself prohibits destruction of documents to evade requirements of law. Violation. • Records destroyed according to an authorized, proper schedule need not be produced.

34. Sources of Helpful Information • FOIL FAQs and Advisory Opinions at http://www.dos.state.ny.us/coog/coogwww.html • Campus Counsel • Robert Freeman, Executive Director N.Y.S. Commission on Open Government 518 474-2518

35. QUESTIONS??????