September 21, 1994



Dr. Walter J. Doherty, Ed.D
Superintendent of Schools
Middleburgh Central School
181 Main Street - PO Box 400
Middleburgh, NY 12122

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.

Dear Dr. Doherty:

As you are aware, I have received your letter of August 31 in which you sought an advisory opinion.

The first issue involves a request by a grievant involved in an arbitration hearing for copies of the school district attorney's notes taken during the hearing. The notes have not been provided to the District, and the attorney has withheld them "based on attorney-client confidentiality."

In my opinion, the physical possession by the District of the records sought, or the absence thereof, is not necessarily determinative of rights of access. The Freedom of Information Law pertains to agency records, and §86(4) of that statute defines the term "record" expansively to include:

"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."

Based upon the foregoing, the definition of "record" includes not only documents that are physically maintained by an agency; it refers to documents are that are "kept, held, filed, produced or reproduced by, with or for an agency." While the District may not have physical possession of the attorney's notes, it appears that they are maintained for the District. Consequently, even though they are not in the physical possession of the District, I believe that they are District records subject to rights conferred by the Freedom of Information Law.

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 (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." 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.d., 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 of the Civil Practice Law and Rules. That provision also appears to be applicable as a basis for withholding the notes.

The second issue pertains to a request for "twelve months of supplementary information provided to individual board members in their board meeting packets." You enclosed a sample of the contents of the packets. Related is a contention by a member of the news media that the District is using a "hidden agenda" in the form of a "superintendent's supplement" that is distributed with the regular monthly meeting agenda. In this regard, I offer the following comments.

First, for reasons discussed earlier, I believe that materials prepared prior to a meeting constitute "records" subject to the Freedom of Information Law.

Second, since the "Superintendent's supplemental" agenda is labeled "confidential", I point out that an assertion or claim of confidentiality, unless it is based upon a statute, is likely meaningless. When confidentiality is conferred by a statute, an act of the State Legislature or Congress, records fall outside the scope of rights of access pursuant to §87(2)(a) of the Freedom of Information Law, which, again, states that an agency may withhold records that "are specifically exempted from disclosure by state or federal statute". If there is no statute upon which an agency can rely to characterize records as "confidential" or "exempted from disclosure", the records are subject to whatever rights of access exist under the Freedom of Information Law [see Doolan v.BOCES, 48 NY 2d 341 (1979); Washington Post v. Insurance Department, 61 NY 2d 557 (1984); Gannett News Service, Inc. v. State Office of Alcoholism and Substance Abuse, 415 NYS 2d 780 (1979)]. As such, an assertion of confidentiality without more, would not in my view serve to enable an agency to withhold a record.

Third, the contents of the records in question serve as the factors relevant to an analysis of the extent to which they may be withheld or must be disclosed. In my view, several of the grounds for denial may be pertinent to such an analysis.

Records prepared by District staff and forwarded to members of the Board would constitute intra-agency materials that fall within the coverage of §87(2)(g) of the Freedom of Information Law. That provision 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 my view be withheld. It is emphasized that the Court of Appeals, the State's highest court has specified that the contents of intra-agency materials determine the extent to which they may be available or withheld, for it was held that:

"While the reports in principle may be exempt from disclosure, on this record - which contains only the barest description of them - we cannot determine whether the documents in fact fall wholly within the scope of FOIL's exemption for 'intra-agency materials,' as claimed by respondents. To the extent the reports contain 'statistical or factual tabulations or data' (Public Officers Law section 87[2][g][i], or other material subject to production, they should be redacted and made available to the appellant" [Xerox Corp. v. Town of Webster, 65 NY 2d 131, 133 (1985)].

Therefore, as indicated earlier, intra-agency materials may be accessible or deniable in whole or in part, depending upon their specific contents.

Also relevant may be §87(2)(b), which enables an agency to withhold records or portions thereof which if disclosed would result in an unwarranted invasion of privacy. That provision might be applied with respect to a variety of matters relating to hiring, evaluation or discipline of teachers or other staff, for example.

Section 87(2)(c) of the Freedom of Information Law permits an agency to withhold records to the extent that disclosure "would impair present or imminent contract awards or collective bargaining negotiations". When the District is engaged in collective bargaining negotiations, information provided to the Board might in some instances fall within that exception.

As discussed previously, §87(2)(a) pertains to records that are exempted from disclosure by state or federal statute. One such statute is the Family Educational Rights and Privacy Act (20 U.S.C. §1232g). In brief, that statute generally forbids a school district from disclosing personally identifiable information concerning students, unless the parents of students consent to disclosure.

In sum, a blanket denial of access to the records in question would likely inconsistent with the Freedom of Information Law. However, it is also likely that one or more grounds for denial could appropriately be cited withhold portions of those records.

Lastly, it is emphasized that the grounds for withholding records appearing in the Freedom of Information Law and the grounds for entry into executive session appearing in §105(1) of the Open Meetings Law are not necessarily consistent. For instance, a recommendation to modify policy or to change the date of a board meeting would constitute intra-agency material that could be withheld pursuant to §87(2)(g) of the Freedom of Information Law. However, when those issues are raised at a Board meeting, there would be no valid basis for conducting an executive session. In short, even though records might be withheld in accordance with law, it does not necessarily follow that a meeting pertaining to those records may properly be closed.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Les Hendrix