January 9, 2009



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.


            As you are aware, I have received your letter in which you raised questions relating to the Freedom of Information Law.  Once again, I hope that you will accept my apologies for the delay in response.

            Your first question involves action taken by the Town of Canandaigua Planning Board to release a memorandum subject to the attorney-client privilege.  The memo was addressed to the Planning Board, with a copy sent to the Town Board, and you have asked whether the Planning Board has the authority to release the memo, or whether there must be approval by the Town Board to do so.

            In this regard, as you are likely aware, 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 (j) 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 (1889);  Pennock v. Lane, 231 NYS 2d 897, 898, (1962); Bernkrant v. City Rent and Rehabilitation Administration, 242 NYS 2d 752 (1963), aff'd 17 App. Div. 2d 392].  As such, I believe that a municipal attorney may engage in a privileged relationship with his 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 (1983)].  Similarly, the work product of an attorney may be confidential under §3101(c) of the Civil Practice Law and Rules.  In my 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 (1977)].

            Based on the foregoing, unless the privilege has not been intelligently and purposely waived, and records consist of legal advice or opinion provided by counsel to the client, 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.

            This issue in relation to the matter raise is whether the Town Board or the Planning Board is the client.   In my view, because it has general supervisory authority over all Town functions pursuant to §64 of the Town Law, the Town Board is the client.  Further, §65(1) of the Town Law states in part that legal counsel may be employed only “as directed by the town board”, and §271 empowers a town board to appoint the members of a planning board.  If indeed the Town Board is the client, only that entity would have the authority to waive the attorney-client privilege and permit disclosure of a record falling within the coverage of the privilege.

            The second question pertains to a “draft FEIS”, and you have been “told by the attorney for the planning board not to give out copies of this document” based on his contentions that a draft is not a “record” subject to the Freedom of Information Law, and because it falls within §87(2)(h), which authorizes an agency to withhold “examination questions or answers which are requested prior to the final administration of such questions...”

            In my opinion, neither of the reasons for withholding the draft FEIS suggested by the attorney can be justified.

            It is emphasized that the Freedom of Information Law pertains to all agency records and that §86(4) of the Law defines the term "record" expansively to mean:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

            In a case in which an agency claimed, in essence, that it could choose which documents it considered to be "records" for purposes of the Freedom of Information Law, the state's highest court rejected that contention.  As stated by the Court of Appeals:

"...respondents' construction -- permitting an agency to engage in a unilateral prescreening of those documents which it deems to be outside the scope of FOIL -- would be inconsistent with the process set forth in the statute.  In enacting FOIL, the Legislature devised a detailed system to insure that although FOIL's scope is broadly defined to include all governmental records, there is a means by which an agency may properly withhold from disclosure records found to be exempt (see, Public Officers Law §87[2]; §89[2],[3].  Thus, FOIL provides that a request for access may be denied by an agency in writing pursuant to Public Officers Law §89(3) to prevent an unwarranted invasion of privacy (see, Public Officers Law §89[2]) or for one of the other enumerated reasons for exemption (see, Public Officers Law §87[2]).  A party seeking disclosure may challenge the agency's assertion of an exemption by appealing within the agency pursuant to Public Officers Law §89(4)(a).  In the event that the denial of access is upheld on the internal appeal, the statute specifically authorizes a proceeding to obtain judicial review pursuant to CPLR article 78 (see, Public Officers Law §89[4][b]).  Respondents' construction, if followed, would allow an agency to bypass this statutory process.  An agency could simply remove documents which, in its opinion, were not within the scope of the FOIL, thereby obviating the need to articulate a specific exemption and avoiding review of its action.  Thus, respondents' construction would render much of the statutory exemption and review procedure ineffective; to adopt this construction would be contrary to the accepted principle that a statute should be interpreted so as to give effect to all of its provisions...

" a practical matter, the procedure permitting an unreviewable prescreening of documents -- which respondents urge us to engraft on the statute -- could be used by an uncooperative and obdurate public official or agency to block an entirely legitimate FOIL request.  There would be no way to prevent a custodian of records from removing a public record from FOIL's reach by simply labeling it 'purely private'.  Such a construction, which could thwart the entire objective of FOIL by creating an easy means of avoiding compliance, should be rejected" [Capital Newspapers v. Whalen, 69 NY 2d 246, 253-254 (1987)].

            In short, insofar as documentation is maintained by or for an agency, such as the Town, a claim that it is not a record subject to the Freedom of Information Law would in my opinion conflict with the interpretation of that statute by the State's highest court.  There is no exception nor is there reference in the Freedom of Information Law to “drafts.”  Again, any document maintained by or for an agency constitutes a “record” subject to rights of access.

            Lastly, §87(2)(h) deals with examinations, i.e., tests, such as civil service examinations or those administered by educational institutions.  That being so, that provision, in my opinion, clearly would not relate to the FEIS.

            I hope that I have been of assistance.