August 8, 2003



FROM: Robert J. Freeman, Executive Director

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, unless otherwise indicated.


As you are aware, I have received your letter concerning your ability, as a member of a board of education, to gain access to certain records.

You indicated that a resident of the District filed an appeal with the Commissioner of Education and that you want to read "the contents of the appeal, and letter of response by the Pres. of our school board." Your request to do so was rejected by the Superintendent and the Board, because, "to paraphrase: It's in litigation and you have no right as an individual on the school board to read the contents."

I believe that you, as well as any member of the public, generally have a right to gain access to the records at issue. In this regard, I offer the following comments.

First, from my perspective, the Freedom of Information Law is intended to enable the public to request and obtain accessible records. Further, it has been held that accessible records should be made equally available to any person, without regard to status or interest [see e.g., Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976) and M. Farbman & Sons v. New York City, 62 NY 2d 75 (1984)]. Nevertheless, if it is clear that records are requested in the performance of one's official duties, the request might not be viewed as having been made under the Freedom of Information Law. In such a situation, if a request is reasonable, and in the absence of a rule or policy to the contrary, I believe that a member of a board should not generally be required to resort to the Freedom of Information Law in order to seek or obtain records.

However, viewing the matter from a more technical perspective, one of the functions of a public body involves acting collectively, as an entity. A board of education, as the governing body of a public corporation, generally acts by means of motions carried by an affirmative vote of a majority of its total membership (see General Construction Law, §41). In my view, in most instances a board member acting unilaterally, without the consent or approval of a majority of the total membership of the board, has the same rights as those accorded to a member of the public, unless there is some right conferred upon a board member by means of law or rule. In the absence of any such rule, a member seeking records could presumably be treated in the same manner as the public generally.

Second, there is nothing in the Freedom of Information Law that generally shields records relating to litigation or, as in this instance, an administrative proceeding, from disclosure.

In brief, 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 (i) 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." Although §3101(c) and (d) of the CPLR authorize confidentiality regarding, respectively, the work product of an attorney and material prepared for litigation, those kinds of records remain confidential in my opinion only so long as they are not disclosed to an adversary or a filed with a court or, in the context of your inquiry, with the Commissioner of Education. In like manner, when legal advice is sought or rendered, the attorney- client privilege ordinarily shields those written communications from disclosure, unless and until the client waives the privilege or the communication is served upon or disclosed to a person or entity other than the client.

The provisions cited above are intended to shield from an adversary records that would result in a strategic advantage or disadvantage, as the case may be. Reliance on either 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)].

In my view, since the records in question have been sent to the Commissioner of Education and have been or can be obtained by the petitioner, any claim of privilege or its equivalent would have been effectively waived.

Lastly, having spoken with an attorney at the State Education Department, it was confirmed that the kinds of records at issue are generally disclosed by the Department in accordance with the Freedom of Information Law, and that rights of access would be the same when those records are maintained by a school district. I note, however, that there may be instances in which portions of the records may be redacted to protect personal privacy. For example, as you may be aware, insofar as District records are personally identifiable to a student, the federal Family Educational Rights and Privacy Act (20 USC §1232g) may prohibit disclosure without the consent of a parent. In other cases, the records might include information of an intimate or personal nature, i.e., in relation to a medical or mental health condition. In those kinds of situations, personally identifying details may be deleted insofar as disclosure would constitute "an unwarranted invasion of personal privacy" [see Freedom of Information Law, §§87(2)(b) and 89(2)(b)]. Nevertheless, following redactions, I believe that the remainder of the records would be accessible.

I hope that I have been of assistance.