May 5, 2017
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, except as otherwise indicated.
I have received your correspondence, which pertains to a response to your request and a response “claiming that a contract between the Village of Floral Park and a law firm, Bevridge and Diamond has privileged information and can be redacted.” It has also been claimed that “the contract between the Village of Floral Park and Vertix, an engineering firm is privileged and may be redacted.” The rationale for the redactions is based on a contention that the records sought “contain privileged information…prepared in anticipation of litigation.” It is your view that the contracts must be disclosed pursuant to the Freedom of Information Law (FOIL).
In most instances, I believe that a contract between an agency, such as a village, and a law firm or other entity would be accessible to the public under FOIL. However, in this instance, it is possible, if not likely, that portions of the contracts might properly be withheld.
It is my understanding that the law firm has been retained by the Village in relation to a controversy involving the potential approval of a third track to be located in the Village proposed by the MTA. The law firm has retained Vertix to conduct a study. Based on information supplied by the Village, there is a likelihood that litigation between the Village and the MTA will ensue.
In this regard, FOIL is based on a presumption of access. Stated differently, all agency records, such as those maintained by or for the Village, are available, except those records or portions of records that fall within one or more of the grounds for denial of access appearing in §87(2) of that statute.
The first ground for denial, §87(2)(a), pertains to records that "are specifically exempted from disclosure by state or federal statute." Pertinent are §3101(c) and (d) of the Civil Practice Law and Rules (CPLR), which authorize confidentiality regarding, respectively, the work product of an attorney and material prepared for litigation. Those kinds of records remain confidential in our opinion so long as they are not disclosed to an adversary or filed with a court, for example. We do not believe that materials that are served upon or shared with an adversary could be characterized as confidential or exempt from disclosure.
Section 3101 pertains to disclosure in a context related to litigation, and subdivision (a) reflects the general principle that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action..." The Advisory Committee Notes pertaining to §3101 state that the intent is "to facilitate disclosure before trial of the facts bearing on a case while limiting the possibilities of abuse." The prevention of "abuse" is considered in the remaining provisions of §3101, which describe narrow limitations on disclosure. One of those limitations, §3101(c), states that "[t]he work product of an attorney shall not be obtainable." The other provision at issue pertains to material prepared for litigation, and §3101(d)(2) states in relevant part that:
"materials otherwise discoverable under subdivision (a) of this section and prepared in anticipation of litigation or for trial by or for another party, or by or for the other party's representative (including an attorney, consultant, surety, indemnitor, insurer or agent), may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation."
Both of those provisions are intended to shield from an adversary records that would result in a strategic advantage or disadvantage, as the case may be. Reliance on both in the context of a request made under the Freedom of Information Law is in my view dependent upon a finding that the records have not been disclosed, particularly to an adversary. In a decision in which it was determined that records could justifiably be withheld as attorney work product, the "disputed documents" were "clearly work product documents which contain the opinions, reflections and thought process of partners and associates" of a law firm "which have not been communicated or shown to individuals outside of that law firm" [Estate of Johnson, 538 NYS 2d 173 (1989)]. In another decision, the relationship between the attorney-privilege and the ability to withhold the work product of an attorney was discussed, and it was found that:
"The attorney-client privilege requires some showing that the subject information was disclosed in a confidential communication to an attorney for the purpose of obtaining legal advice (Matter of Priest v. Hennessy, 51 N.Y.2d 62, 68-69, 431 N.Y.S.2d 511, 409 N.E.2d 983). The work-product privilege requires an attorney affidavit showing that the information was generated by an attorney for the purpose of litigation (see, Warren v. New York City Tr. Auth., 34 A.D.2d 749, 310 N.Y.S.2d 277). The burden of satisfying each element of the privilege falls on the party asserting it (Priest v. Hennessy, supra, 51 N.Y.2d at 69, 431 N.Y.S. 2d 511, 409 N.E.2d 983), and conclusory assertions will not suffice (Witt v. Triangle Steel Prods. Corp., 103 A.D.2d 742, 477 N.Y.S.2d 210)" [Coastal Oil New York, Inc. v. Peck, [184 AD 2d 241 (1992)].
In a discussion of the parameters of the attorney-client relationship and the conditions precedent to its initiation, it has been held that:
"In general, 'the privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client'" [People v. Belge, 59 AD 2d 307, 399 NYS 2d 539, 540 (1977)].
The thrust of case law concerning material prepared for litigation is consistent with the preceding analysis, in that §3101(d) may properly be asserted as a means of shielding such material from an adversary.
Insofar as the contracts include information reflective of litigation strategy which, if disclosed, would provide an adversary in litigation with an advantage, or conversely, would place the Village at a disadvantage in litigation, I believe that those portions of the contracts may be withheld. In that circumstance, those elements of the records may be characterized as consisting of material prepared for litigation that is privileged pursuant to §3101(d) of the CPLR.
I hope that the foregoing serves to clarify and that I have been of assistance.
Robert J. Freeman
cc: Susan E. Walsh, Village Clerk
John Ryan, Village Attorney