April 9, 2014
FROM: Camille S. Jobin-Davis, Assistant 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 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 Division of Human Rights. Specifically, you were denied access to records of content listings or subject listings and descriptions of all general counsel advisory opinions which were created between 1975 and the present on the grounds that FOIL does not require disclosure of records or portions therefore “that are pre-decisional, intra-agency material.” The Division asserted that such information, created by an attorney and comprised of legal research, analysis and conclusions, constitutes privileged attorney work product and attorney-client privileged material and is therefore expressly prohibited from being disclosed. The Division further asserted that because the request for the descriptions of the opinions is essentially the same as a request for the opinions, the decision in Miller v NYS Divison of Human Rights, Supreme Court, Bronx County, December 6, 2012, which is currently on appeal, applies, and Executive Law §297(8) prohibits disclosure.
First, with respect to the pending appeal in Miller v NYS Division of Human Rights (Supreme Court, Bronx County, December 4, 2012), we note that the records requested in Miller are the legal opinions themselves, not summaries or descriptions of the opinions. Accordingly, we believe that the two requests can be distinguished. To the extent that Miller is currently on appeal, we will refrain from commenting on the merits of a request for the opinions themselves.
Second, 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.
Of relevance to your reqest is the first ground for denial, §87(2)(a), which pertains to records that “are specifically exempted from disclosure by state or federal statute.” The Division asserts that Executive Law §297(8) prohibits disclosure of the requested records, and we respectfully disagree. Section 297(8) provides as follows:
“No officer, agent or employee of the division shall make public with respect to a particular person without his consent information from reports obtained by the division except as necessary to the conduct of a proceeding under this section.”
This provision, in our opinion, may prohibit the release of records insofar as they would identify a particular claimant or entity against whom a complaint had been made; however, the plain language of the statute, in our opinion, does not prohibit release of records that summarize legal issues, judicial precedent and/or descriptions of legal research. In the event that the summary or description includes identifying reference to a claimant or an employer, such information could be redacted prior to disclosure.
It is emphasized 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, the phrase quoted in the preceding sentence evidences a 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.
The Court of Appeals confirmed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department, stating that:
“To ensure maximum access to government documents, 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 NY2d 106, 109; 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 NY2d 567, 571).” (89 NY2d 267, 275 ).
Just as significant, the Court in Gould repeatedly specified that a blanket denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the New York City 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), one of the exceptions cited in response to your columnist’s request. 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 NY2d, at 571). 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 NY2d 131, 133; Matter of Farbman & Sons v New York City Health & Hosps. Corp., supra, 62 NY2d, at 83).” (Id.).
In the context of your request, the Division engaged in a blanket denial of access in a manner which, in our view, is equally inappropriate. Depending on the content of the descriptions, and whether the cases were appealed to a court or posted online, they may be available in full. At the very least, based on the direction given by the Court of Appeals in several decisions, the records must be reviewed for the purpose of identifying those portions of the records that might fall within the scope of one or more of the grounds for denial of access. As the Court stated later in the decision: "Indeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof, under any other applicable exemption, such as the law-enforcement exemption or the public-safety exemption, as long as the requisite particularized showing is made." (Id., 277; emphasis added).
We note that the Division has made hundreds of its Notices and Final Orders, including Recommended Findings of Fact, Opinion and Decision, and Order available online. These unredacted documents identify the complainant and employer by name, and include extensive information regarding the allegations and testimony. To the extent that the Division has already disclosed personally identifying information about these cases, it would be inconsistent, in our view, to now claim that disclosure of summaries of related legal opinions would be prohibited.
The Division further relied on Short v Board of Managers of Nassau County Medical Center (57 NY2d 399, 456 NYS2d 724 ) in support of its position that when information is prohibited from being disclosed, the entire record, including any information that would be required to be made public, would be prohibited from being disclosed.
While we agree with the Division’s interpretation of Short, in our opinion, that holding is inapplicable to the circumstances herein. The statute at issue in Short prohibited disclosure of “all information received by public welfare and public health officials and service officers concerning applicants for and recipients of medical assistance”, and limited disclosure “only for purposes directly connected with the administration of medical assistance for needy persons” (Social Services Law, § 369, subd. 3). As outlined above, there is no such express statutory prohibition here, and, the Division has already made a portion of the underlying identities and factual allegations public online. Accordingly, and at the very least, to the extent that the descriptions of legal opinions pertain to those cases for which orders are available online, the agency would have waived any exceptions to public disclosure. Further, to the extent that a claimant has appealed a Division decision to a court, and the decision of the Division along with all identifying information and allegations are public at the courthouse, the Division’s contention that release of such information continues to be prohibited is, in our opinion, without merit.
With respect to records that are protected by the attorney-client privilege, as codified by §4503 of the Civil Practice Law and Rules, and CPLR §3101, which creates an exemption from discovery regarding the work product of an attorney, we again respectfully disagree with the Division’s reliance on these provisions to deny access.
From our perspective, when a state official or body seeks legal advice from its attorney and the attorney renders legal advice, communications of that nature would fall within the coverage of the attorney- client privilege and would, therefore, be exempt from disclosure under §87(2)(a) of the Freedom of Information Law.
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 AD2d 307, 399 NYS2d 539, 540 ).
In our view, communications between a government attorney and a third party that is not the client, would not be subject to the attorney-client privilege and would ordinarily be accessible. Any disclosure made to or received from a person other than a client would constitute a waiver of the authority to rely upon those exceptions to rights of access. See Morgan v. NYS Dept. of Environmental Conservation, 9 AD3d 586, 779 NYS2d 643 (3d Dept 2004). A communication, for example, between a state agency attorney and a private citizen, or a representative of a private entity, such as a claimant or an employer who is the subject of a complaint, could not in our opinion be withheld under the attorney-client privilege.
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..." It is intended to shield from an adversary records that would result in a strategic advantage or disadvantage, as the case may be. 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 the situation here, the summaries of the legal opinions have already been shared with all parties to claims pending before the Division, and to which the Division is not a party.
We believe that the Divisions reliance on Levine v NYS Division of Human Rights (Supreme Court, Orange County, April 8, 2013) is, respectfully, misplaced. In Levine, the court denied the application for appeal on the ground that it was not filed within the four month statute of limitations; the court offered no legal analysis of the exceptions to FOIL that the Division relied on to deny access.
Finally, with respect to the timeliness of the Division’s response, this will confirm our opinion that when an agency’s regulations specify an amount of time within which the agency must respond to a request or an appeal that is shorter than that outlined in the Freedom of Information Law, the agency would be required to abide by its own regulations.
We hope that this is helpful.