September 16, 2016
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.
We are in receipt of your request an advisory opinion regarding the manner in which the Town of Yorktown responded to your Freedom of Information Law (FOIL) request.
You requested “any and all e-mails between Sandra Serrano and Marcus Serrano” including, but not limited to, e-mails sent and received and their respective government e-mail addresses. According to your letter, Ms. Serrano is an employee of the Town of Yorktown and Mr. Serrano is an employee of the City of Rye. Mr. and Ms. Serrano are married to each other. The Town of Yorktown denied your request on the grounds that the e-mails are confidential pursuant to NYS Civil Practice Law and Rules (CPLR) §4502(b):
“Confidential communication privileged. A husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage.”
FOIL 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. Section 87(2)(a) permits an agency to deny access to records or portions of records that “are specifically exempted from disclosure by state or federal statute.” CPLR §4502(b) is applicable in all civil and criminal proceedings and gives statutory recognition to the common law privilege for confidential communications between spouses (NY CPLR 4502 McKinney Practice Commentary). The privilege is not limited to family court proceedings.
In our opinion, CPLR §4502 does not afford confidentiality to records “kept, held, filed, produced or reproduced by, with or for an agency” that are subject to rights of access conferred by FOIL (§86(4) of FOIL). The e-mail records are the property of the agency, not the employees/spouses, and it is the agency that is being required to disclose its records, not the spouses.
Even if we were to assume that the e-mails were the employees’ to disclose, in my view, the spousal privilege is unlikely to apply. McKinney Practice Commentary for §4502 states:
“The privilege for confidential communications between spouses applies to (a) a communication (b) induced by the marital relationship (c) made in confidence (d) during the marriage, if it is (e) not waived and (f) not subject to an exception.”
Confidentiality is a key element of the marital privilege. The privilege will not attach to communications made by the spouses in the known presence of outsiders (People v. Ressler, 1966, 17 N.Y.2d 174, 269 N.Y.S.2d 414, 216 N.E.2d 582; People v. Melski, 1961, 10 N.Y.2d 78, 217 N.Y.S.2d 65, 176 N.E.2d 81). In a federal court decision relating to communications between spouses using a business e-mail account, In re Reserve Fund Securities and Derivative Litigation, 2011, 275 F.R.D. 154 (S.D.N.Y.), the court wrote that the basic issue was whether the spouse had a reasonable expectation of privacy in the emails, which depended on whether he had actual or constructive notice that they would be monitored or read by third parties. If the e-mails between the Mr. and Ms. Serrano were sent and received using their government agency e-mail accounts, it is unlikely that the spouses had a reasonable expectation of privacy in the e-mails. Both parties knew or should have known that the e-mails constituted records subject to FOIL, particularly as Mr. Serrano serves as the Rye City Manager. It is also likely that the e-mail correspondences of both government employees are subject to monitoring by their respective agencies.
Further, even if we were to assume that the parties did have an expectation of privacy, the nature of the communications may not give rise to the spousal privilege.
“The privilege as to communications between husband and wife does not protect all exchanges between spouses. Daily and ordinary communications are not protected, merely those that would not have been made but for the absolute confidence in, and which are induced by, the marital relationship. That is, the marital privilege attaches only to those statements made in confidence that are induced by the marital relation and prompted by the affection, confidence, and loyalty engendered by such a relationship.” (58A N.Y. Jur. 2d Evidence and Witnesses § 869 referencing Roberts v. Pollack, 92 A.D.2d 440, 461 N.Y.S.2d 272 (1st Dep't 1983), Prink v. Rockefeller Center, Inc., 48 N.Y.2d 309, 422 N.Y.S.2d 911, 398 N.E.2d 517 (1979), People v. Marinaccio, 15 A.D.3d 932, 788 N.Y.S.2d 784 (4th Dep't 2005), and Matter of Vanderbilt (Rosner-Hickey), 57 N.Y.2d 66, 453 N.Y.S.2d 662, 439 N.E.2d 378 (1982).
If the e-mails constituted “daily and ordinary communications,” the spousal privilege would not apply. If the e-mails contained statements “induced by the marital relation and prompted by the affection, confidence, and loyalty engendered by such a relationship,” the agency could likely deny access to the record or portions of the record on the ground that disclosure would constitute an unwarranted invasion of personal privacy (§87(2)(b)).
Finally, I point out that both spouses work for “agencies” as defined by FOIL (§86(3)). Communications between employees of the two agency might fall within the “inter-agency” exception (§87(2)(g) of FOIL). This exception permits an agency to deny access to records or portions of 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.”
The Committee on Open Government has rendered several advisory opinions relating to “intra-agency” and “inter-agency” material. Those opinions are available on the Committee website: http://www.dos.ny.gov/coog/foil_listing/findex.html - click on “I” and scroll down to “Inter-Agency & Intra-Agency Materials.”
I hope that I have been of assistance.
cc: Yorktown Records Access Officer