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 FOIL-AO-13590

August 23, 2002

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.

Dear

As you are aware, I have received your letter of August 2 and the materials relating to it.
Based on our conversations, although other records are of interest, it appears that your focus
involves a document prepared by an employee of the Hornell City School District in 1993.

By way of background, during our discussions of the matter, you indicated that a parent
about to enroll his or her children in a school in the District identified a janitor and informed a
guidance counselor and the school principal that the janitor is a pedophile. Following the receipt
of that information, the principal apparently prepared a paper of some sort in which he
memorialized the information acquired from the parent. The janitor was arrested some fourteen
months later and pleaded guilty to sex abuse charges. You wrote that lawsuits were commenced in
1994 against the District based on claims that the "their janitor was a pedophile and for them failing
to act and/or counteract to protect the students." The document prepared by the principal is the
record of your primary interest, and you have sought an advisory opinion concerning rights of
access to it.

In this regard, I offer the following comments.

First, the Freedom of Information Law is applicable to all records of an agency, such as a
school district, 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."

In my view, if the document in question continues to exist, irrespective of its form or
characterization, it would constitute a "record" that falls within the coverage of the Freedom of
Information Law.

Second, 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.

Because the matter involves a school district and a sex offense, I note that I am mindful of
the provisions of both the Family Educational Rights and Privacy Act ("FERPA"; 20 USC §1232g)
and §50-b of the Civil Rights Law. The former, for purposes of disclosure to third parties, states,
in brief, that those portions of education records, records maintained by an educational agency that
are personally identifiable to a student or students, cannot be disclosed without the consent of the
parent of a minor student or the student if he or she has reached majority. The latter prohibits a
public officer or employee from disclosing records that would identify or tend to identify the victim
of a sex offense. When either statute applies, records may be withheld pursuant to the first ground
for denial in the Freedom of Information Law, §87(2)(a), which pertains to records that "are
specifically exempted from disclosure by state or federal statute."

Since the writing prepared by the principal was authored in 1993, long before any arrest, and
since you indicated that it does not identify any victim of a sex offense, I do not believe that §50-b
of the Civil Rights Law would be applicable. FERPA would appear to applicable if the writing
includes personally identifiable information pertaining to the person or persons who provided the
information to the District. The regulations promulgated under FERPA define the phrase
"personally identifiable information" to include:

"(a) The student's name;
(b) The name of the student's parents or other family
member;
(c) The address of the student or student's family;
(d) A personal identifier, such as the student's social
security number or student number;
(e) A list of personal characteristics that would make the
student's identity easily traceable; or
(f) Other information that would make the student's
identity easily traceable" (34 CFR § 99.3).

Based upon the foregoing, references to students' names, parents' names, or other aspects of records
that would make a student's identity easily traceable must in my view be withheld in order to
comply with federal law unless an exception authorizes disclosure.

In short, insofar as the writing includes personally identifiable information relating to a
student, including the name of a parent, I believe that deletions must be made to comply with
FERPA, unless consent to disclose is obtained from the parent/student.

Also relevant in analyzing rights of access is §87(2)(g) of the Freedom of Information Law.
The writing prepared by the principal would in my view clearly constitute "intra-agency material",
and the cited provision provides that the content of such material determines the extent to which it
may be withheld. Specifically, §87(2)(g) permits an agency to deny access to:

"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.

Based on the foregoing, it appears that any factual information contained within the writing
would be accessible, following the deletion of personally identifiable details regarding the person
reporting the information to the principal and his or her child.

I point out, too, that the Court of Appeals has sought to distinguish factual information from
other aspects of internal governmental communications. In Gould v. New York City Police
Department, the Court found that:

"...Although the term 'factual data' is not defined by statute, the
meaning of the term can be discerned from the purpose underlying
the intra-agency exemption, which is 'to protect the deliberative
process of the government by ensuring that persons in an advisory
role [will] be able to express their opinions freely to agency decision
makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131,
132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d
546, 549]). Consistent with this limited aim to safeguard internal
government consultations and deliberations, the exemption does not
apply when the requested material consists of 'statistical or factual
tabulations or data' (Public Officers Law 87[2][g][i]. Factual data,
therefore, simply means objective information, in contrast to
opinions, ideas, or advice exchanged as part of the consultative or
deliberative process of government decision making (see, Matter of
Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on
op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v.
Yudelson, 68 AD2d 176, 181-182)" [89 NY2d 267, 276-277
(1996)].

Additionally, if the Court determined that portions of intra-agency materials that reflected
information or opinions of persons who are not government officers or employees could not be
withheld under §87(2)(g). In its discussion of the matter, it was stated that:

"...the Police Department argues that any witness statements
contained in the reports, in particular, are not 'factual' because there
is no assurance of the statements' accuracy and reliability. We
decline to read such a reliability requirement into the phrase 'factual
data,' as the dissent would have us do, and conclude that a witness
statement constitutes factual data insofar as it embodies a factual
account of the witnesses's observations. Such a statement, moreover,
is far removed from the type of internal government exchange sought
to be protected by the intra-agency exemption.." (id., 277).

Therefore, if, for example, a parent offered information that was recorded in writing by a District
official, I do not believe that §87(2)(g) would serve as a basis for a denial of access.

The remaining documents in which you expressed interest involve the file concerning the
lawsuit filed in 1994.

I am unaware of whether or the extent to which records contained in the file tend to identify
a victim of a sex offense. If a record includes such information, and if §50-b of the Civil Rights
Law applies, the record would be beyond the scope of rights of access. Judicial decisions focusing
on that statute have dealt primarily with disclosure in the context of criminal proceedings. Although
one decision of which I am aware indicated that the confidentiality accorded by §50-b applies to
civil actions as well as criminal proceedings (Deborah S. v. Diorio, 153 Misc.2d 708, 719), I know
of no decision that focuses squarely on the situation in which a victim or that person's
representative initiates a civil proceeding, and whether such action may create a waiver of the
application of §50-b. If there is a waiver, rights of access would be determined by the Freedom of
Information Law and other statutes; if there is no waiver, a record including information that would
tend to identify a victim of a sex offense must, according to the Court of Appeals, be withheld.

Subdivision (1) of §50-b states that:

"The identity of any victim of a sex offense, as defined in article one
hundred thirty or §255.25 of the penal law, shall be confidential. No
report, paper, picture, photograph, court file or other documents, in
the custody or possession of any public officer or employee, which
identifies such victim shall be made available for public inspection.
No such public officer or employee shall disclose any portion of any
police report, court file, or other document, which tends to identify
such a victim except as provided in subdivision two of this section."

As you are likely aware, the Freedom of Information Law generally requires agencies to
review records to determine which portions, if any, fall within one or more of the grounds for a
denial of access appearing in §87(2). Following such review, agencies are required to make
appropriate redactions and disclose the remainder of the records. However, the Court of Appeals
held nearly twenty years ago that:

"...[t]he statutory authority to delete identifying details as a means to remove records
from what would otherwise be an exception to disclosure mandated by the Freedom
of Information Law extends only to records whose disclosure without deletion would
constitute an unwarranted invasion of personal privacy, and does not extend to
records excepted in consequence of specific exemption from disclosure by State or
Federal statute" [Short v. Board of Managers, 57 NY2d 399, 401 (1982)].

Based on the specific language of §50-b of the Civil Rights Law, in a manner consistent with Short,
the Court of Appeals in Fappiano v. New York City Police Department [95 NY2d 738 (2001)] held
that any record maintained by a public officer or employee that tends to identify the victim of a sex
offense must be withheld in its entirety, except as provided in subdivision (2) of that statute.
Similarly, in Karlin v. McMahon, the Court found that "the police are not obligated to provide the
records even though redaction might remove all details which 'tend to identify the victim'" [96
NY2d 842 (2001)].

Insofar as §50-b does not bar disclosure, it appears that the records in question would be
available in great measure. I note that the papers that you attached refer to a decision involving
court records in possession of an agency. Although the Appellate Division found that court records
maintained by an agency fell outside the coverage of the Freedom of Information Law, the Court
of Appeals recently reversed that holding. Newsday v. Empire State Development Corporation
(__NY2d__, June 13, 2002) dealt with a request for copies of subpoenas issued by a court and
served upon a state agency by the office of a district attorney. In concluding that those records,
despite having been prepared by and emanated from a court are agency records subject to the
Freedom of Information Law, it was stated that:

"To be sure, had the subpoenas remained in the exclusive possession
of the court on whose behalf they were issued, they would have been
immune from compulsory disclosure under FOIL. That, however,
would not have been due to the fact that it was the court that
produced them, but because the Judiciary is expressly excluded from
agency status under FOIL. Therefore, no 'information **** in any
physical form' held or kept by a court as such is subject at all to
FOIL, any more so than would records held or kept by a private
person or any non-governmental entity. The immunity of the
subpoenas from FOIL when once possessed by a court, however,
does not run with those records. When they were served upon
ESDC, a FOIL-defined agency, they were fully subject to FOIL
disclosure in the absence of any showing by ESDC that some
statutory exemption applies."

Based on the foregoing, records maintained by or for the District, irrespective of their origin,
are subject to rights conferred by the Freedom of Information Law.

The records in question involve litigation. In this regard, 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, for example. I do not believe that materials
that are served upon or shared with an adversary could be characterized as confidential or exempt
from disclosure.

As indicated earlier, §87(2)(a) of the Freedom of Information Law pertains to records that
are "specifically exempted from disclosure by state or federal statute." Section 3101 pertains
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..." The Advisory Committee Notes pertaining to §3101 state that the intent is "to
facilitate disclosure before trial of the facts bearing on a case while limiting the possibilities of
abuse." The prevention of "abuse" is considered in the remaining provisions of §3101, which
describe narrow limitations on disclosure. One of those limitations, §3101(c), states that "[t]he
work product of an attorney shall not be obtainable." The other provision at issue pertains to
material prepared for litigation, and §3101(d)(2) states in relevant part that:

"materials otherwise discoverable under subdivision (a) of this
section and prepared in anticipation of litigation or for trial by or for
another party, or by or for the other party's representative (including
an attorney, consultant, surety, indemnitor, insurer or agent), may be
obtained only upon a showing that the party seeking discovery has
substantial need of the materials in the preparation of the case and is
unable without undue hardship to obtain the substantial equivalent
of the materials by other means. In ordering discovery of the
materials when the required showing has been made, the court shall
protect against disclosure of the mental impressions, conclusions,
opinions or legal theories of an attorney or other representative of a
party concerning the litigation."

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

The thrust of case law concerning material prepared for litigation is consistent with the
preceding analysis, in that §3101(d) may properly be asserted as a means of shielding such material
from an adversary.

When the records in question were communicated between the District and litigants, any
claim of privilege or its equivalent was in my view effectively waived. Once records in the nature
of attorney work product or material prepared for litigation are transmitted to an adversary, I believe
that the capacity to claim exemptions from disclosure under §3101(c) or (d) of the CPLR or,
therefore, §87(2)(a) of the Freedom of Information Law, ends.

Lastly, I am unaware of whether there may have been judicial intervention concerning
disclosure, i.e., through the issuance of an order to seal records. However, I point out that Part 216
of the Uniform Rules of Trial Courts in civil actions states in relevant part that:

"Except where otherwise provided by statute or rule, a court shall not
enter an order in any action or proceeding sealing the court records,
whether in whole or in part, except upon a written finding of good
cause, which shall specify the grounds thereof. In determining
whether good cause has been shown, the court shall consider the
interests of the public as well as of the parties. Where it appears
necessary or desirable, the court may prescribe appropriate notice
and opportunity to be heard."

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: David C. Smith