September 12, 2014
FROM: Camille S. Jobin-Davis, Assistant Director
The staff of the Committee on Open Government is authorized to issued advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
This is in response to your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the Town of New Castle. Specifically, you requested that we address the limits or boundaries of the attorney-client privilege and the intra and inter-agency exemption along with the corresponding evidentiary requirements, and indicate whether an agency must provide a list of documents for which it claims an exemption. At our invitation, counsel to the Town has submitted the enclosed. Accordingly, we base our opinion on the materials provided by you and the Town, and offer legal advice and counsel in an effort to help resolve outstanding issues of access.
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 (l) of the Law.
The first ground for denial, §87(2)(a), pertains to records that are "specifically exempted from disclosure by state or federal statute." For more than a century, the courts have found that legal advice given by a municipal attorney to his or her clients, municipal officials, is privileged when it is prepared in conjunction with an attorney-client relationship (see e.g., People ex rel. Updyke v. Gilon, 9 NYS 243, 244 ; Pennock v. Lane, 231 NYS 2d 897, 898, ; Bernkrant v. City Rent and Rehabilitation Administration, 242 NYS 2d 752 , aff'd 17 App. Div. 2d 392). As such, we believe that a municipal attorney may engage in a privileged relationship with his or her client and that records prepared in conjunction with an attorney-client relationship are considered privileged under §4503 of the Civil Practice Law and Rules. Further, since the enactment of the Freedom of Information Law, it has been found that records may be withheld when the privilege can appropriately be asserted when the attorney-client privilege is read in conjunction with §87(2)(a) of the Law (see e.g., Mid-Boro Medical Group v. New York City Department of Finance, Sup. Ct., Bronx Cty., NYLJ, December 7, 1979; Steele v. NYS Department of Health, 464 NY 2d 925 ). Similarly, the work product of an attorney may be confidential under §3101(c) of the Civil Practice Law and Rules. In our view, there need not be litigation for there to be an attorney-client relationship or to assert the attorney-client privilege.
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 ).
Based on the foregoing, assuming that the Town Board has not intelligently and purposely waived the privilege that exists between itself and an attorney, and that records withheld are the basis for or contain legal advice provided by counsel to the Town, such records would be confidential pursuant to §4503 of the Civil Practice Law and Rules and, therefore, exempted from disclosure under §87(2)(a) of the Freedom of Information Law.
In the past, we have advised that the attorney-client privilege is not waived when disclosure of privileged material is shared with a party at interest in litigation, or when the holder of privileged material is required to disclose the material to comply with law. For instance, regulatory agencies may require that regulated entities submit privileged material to those agencies to comply with law and enable those agencies to perform their statutory duties. In those cases, because the regulated entities are compelled to disclose, this office has advised that the privilege is not deemed to have been waived. Consequently, in our opinion, if there was disclosure of records that are otherwise confidential pursuant to the attorney-client privilege to either a party at interest in litigation or to comply with law, the privilege would not have been waived.
Not every communication between an attorney and his/her client would fall within the scope of the attorney-client privilege. It is our understanding that the privilege applies only when communications involve expertise that only an attorney can offer. When an attorney offers an opinion or guidance that is not uniquely the product of legal training and expertise, we do not believe that the attorney-client privilege would apply or, therefore, that, a communication of that nature could be characterized as confidential. In addition, for example, insofar as the nature of legal advice is disclosed by means of discussion occurring during an open meeting of the Board, or disclosed to a person other than the client, we believe that the privilege would be waived. In that instance, the material that had been subject to the attorney-client privilege and confidential would no longer be confidential.
We note that while counsel provided access to many records on behalf of the Town, in many instances, he denied access to the remainders based on a vague “and/or” statement, “[a]ll other responsive records are exempt from disclosure under FOIL because they are protected by the attorney-client privilege and/or are non-final, intra-agency materials.” It is for this reason that we now turn to the intersection of the inter-agency exception and the statutory attorney-client privilege.
Unlike the blanket protection afforded under the attorney-client privilege, communications shared between and among agencies are required to be made available in whole or in part depending on their content pursuant to §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.
We note that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow. In our view, this phrase evidences recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld. That being so, we believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.
In this vein, the Court of Appeals reiterated its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department (89 NY2d 267 ), stating that:
"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[b]). As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).
Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the Police Department contended that complaint follow up reports could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g). The Court, however, wrote that: "Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports. We agree" (id., 276), and stated as a general principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (id., 275). The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, stating that:
"...to invoke one of the exemptions of section 87(2), the agency must articulate 'particularized and specific justification' for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).
When records consist of intra-agency material, that they may be preliminary to a decision does not remove them from rights of access. One of the contentions offered by the agency in Gould was that certain reports could be withheld because they are not final and because they relate to matters for which no final determination had been made. The Court rejected that finding and stated that:
"...we note that one court has suggested that complaint follow-up reports are exempt from disclosure because they constitute nonfinal intra-agency material, irrespective of whether the information contained in the reports is 'factual data' (see, Matter of Scott v. Chief Medical Examiner, 179 AD2d 443, 444, supra [citing Public Officers Law §87[g][iii)]. However, under a plain reading of §87(2)(g), the exemption for intra-agency material does not apply as long as the material falls within any one of the provision's four enumerated exceptions. Thus, intra-agency documents that contain 'statistical or factual tabulations or data' are subject to FOIL disclosure, whether or not embodied in a final agency policy or determination (see, Matter of Farbman & Sons v. New York City Health & Hosp. Corp., 62 NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d 577)..." (id., 276).
In short, that a record is “non-final” would not represent an end of an analysis of rights of access or an agency's obligation to review the entirety of its contents.
Finally, this will confirm that while there is no requirement in state law that an agency create an index or a list of all documents withheld, a court has authority to order an in camera inspection to review all records and determine rights of access.
We hope that this is helpful.