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April 14, 1998

 

Ms. Gay H. Williams
City Attorney
City of Oswego
City Hall
Oswego, NY 13126

Mr. Miles Becker
96 Hamilton Street
Oswego, NY 13126

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 Ms. Williams and Mr. Becker:

I have received correspondence from both of you recently that pertains to two requests
made under the Freedom of Information Law for the same or similar records. One request
was made by Mr. Becker; the other by Mr. Luis Perez of the Syracuse Newspapers. As I
understand the matter, both requests involve records indicating services rendered by and
monies paid to an attorney or his firm by the City of Oswego. Ms. Williams appears to
have denied both requests in their entirety.

From my perspective, while some aspects of the records sought might justifiably have
been withheld, it is likely that many others should be disclosed. In this regard, I offer the
following comments.

First, in Mr. Becker's letter to Ms. Williams reference was made to a denial based upon
º96 of the Public Officers Law. Section 96 is part of the Personal Privacy Protection Law.
That statute does not apply to a unit of local government, such as the City of Oswego [see
definition of "agency" for purposes of the Personal Privacy Protection Law, º92(1)].

Second, and perhaps most importantly, 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 fall within one or more grounds for denial appearing in º87(2)(a)
through (i) of the Law. It is emphasized that the introductory language of º87(2) refers to
the authority to withhold "records or portions thereof" that fall within the scope of the
exceptions that follow. In my 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, I 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 expressed its general view of the intent of the Freedom of
Information Law in a recent decision, Gould v. New York City Police Department [87 NY
2d 267 (1996)], stating that:

"To ensure maximum access to government records, 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 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750
see, Public Officers Law º 89[4][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 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393
N.E.2d 463)" (id., 275).

Just as significant, the Court in Gould repeatedly specified that a categorical denial of
access to records is inconsistent with the requirements of the Freedom of Information
Law. In that case, the agency contended that complaint follow up reports, also known as
"DD5's", could be withheld in their entirety on the ground that they fall within the
exception regarding intra-agency materials, º87(2)(g). 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).
The Court then 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, directing 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 N.Y.2d,
at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). 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 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74;
Matter of Farbman & Sons v. New York City Health & Hosps. Corp.,
supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

Third, in Ms. Williams' response to an appeal by Mr. Perez she cited the decision
rendered in Orange County Publications, Inc. v. County of Orange [637 NYS 2d 596
(1995)]. As I interpret her determination, she relied upon Orange County Publications as
a means of engaging in a broad denial of access. As I read that decision, the Court
narrowly construed exceptions to rights of access.

That decision involved a request for "the amount of money paid in 1994 to a particular
law firm for legal services rendered in representing the County in a landfill expansion suit,
as well as "copies of invoices, bills, vouchers submitted to the county from the law firm
justifying and itemizing the expenses for 1994" (id., 599). Although monthly bills
indicating amounts charged by the firm were disclosed, the agency redacted "'the daily
descriptions of the specific tasks' (the description material) 'including descriptions of issues
researched, meetings and conversations between attorney and client'" (id.). The County
offered several rationales for the redactions; nevertheless, the court rejected all of them, in
some instances fully, in others in part.

The first contention was that the descriptive material is specifically exempted from
disclosure by statute in conjunction with º87(2)(a) of the Freedom of Information Law and
the assertion of the attorney-client privilege pursuant to º4503 of the Civil Practice Law
and Rules (CPLR). The court found that the mere communication between the law firm
and the County as its client does not necessarily involve a privileged communication;
rather, the court stressed that it is the content of the communications that determine the
extent to which the privilege applies. Further, the court distinguished between actual
communications between attorney and client and descriptions of the legal services
provided, stating that:

"Thus, respondent's position can be sustained only if such descriptions
rise to the level of protected communications.

"In this regard, the Court recognizes that not all communications
between attorney and client are privileged. Matter of Priest v.
Hennessy, supra, 51 N.Y.2d 68, 69, 409 N.E.2d 983, 431, N.Y.S.2d
511. In particular, 'fee arrangements between attorney and client do
not ordinarily constitute a confidential communication and, thus, are
not privileged in the usual case' (Ibid.). Indeed, æ[a] communication
concerning the fee to be paid has no direct relevance to the legal
advice to be given', but rather "[i]s a collateral matter which, unlike
communications which relate to the subject matter of the attorney's
professional employment, is not privileged' Matter of Priest v.
Hennessy, supra, 51 N.Y.2d at 69, 409 N.E.2d 983, 431 N.Y.S.2d
511.

"Consequently, while billing statements which 'are detailed in showing
services, conversations, and conferences between counsel and others'
are protected by the attorney-client privilege (Licensing Corporation
of America v. National Hockey League Players Association, 153
Misc.2d 126, 127-128, 580 N.Y.S.2d 128 [Sup. Ct. N.Y.Co. 1992];
see, De La Roche v. De La Roche, 209 A.D.2d 157, 158-159 [1st
Dept. 1994]), no such privilege attaches to fee statements which do
not provide 'detailed accounts' of the legal services provided by
counsel..." (id., 602).

It was also contended that the records could be withheld on the ground that they
constituted attorney work product or material prepared for litigation that are exempted
from disclosure by statute [see CPLR, º3101(c) and (d)]. In dealing with that claim, it
was stated by the court that:

"Respondent's denial of the FOIL request cannot be upheld unless the
descriptive material is uniquely the product of the professional skills
of respondent's outside counsel. The preparation and submission of
a bill for fees due and owing, not at all dependent on legal expertise,
education or training, cannot be 'attribute[d]...to the unique skills of
an attorney' (Brandman v. Cross & Brown Co., 125 Misc.2d 185, 188
479 N.Y.S.2d 435 [Sup. Ct. Kings Ct. 1984]). Therefore, the
attorney work product privilege does not serve as an absolute bar to
disclosure of the descriptive material. (See, id.).

"Nevertheless, depending upon how much information is set forth in
the descriptive material, a limited portion of that information may be
protected from disclosure, either under the work product privilege, or
the privilege for materials prepared for litigation, as codified in CPLR
3101(d)...

"While the Court has not been presented with any of the billing
records sought, the Court understands that they may contain specific
references to: legal issues researched, which bears upon the law firm's
theories of the landfill action; conferences with witnesses not yet
identified and interviewed by respondent's adversary in that lawsuit;
and other legal services which were provided as part of counsel's
representation of respondent in that ongoing legal action...Certainly,
any such references to interviews, conversations or correspondence
with particular individuals, prospective pleadings or motions, legal
theories, or similar matters, may be protected either as work product
or material prepared for litigation, or both" (emphasis added by the
court) (id., 604).

Finally, it was contended that the records consisted of intra-agency materials that could
be withheld under º87(2)(g) of the Freedom of Information Law. That provision permits
an agency to 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.

The court found that much of the information would likely consist of factual
information available under º87(2)(g)(i) and stated that:

"...the Court concludes that respondent has failed to establish that
petitioner should be denied access to the descriptive material as a
whole. While it is possible that some of the descriptive material may
fall within the exempted category of expressions of opinion,
respondent has failed to identify with any particularity those portions
which are not subject to disclosure under Public Officers Law
º87(2)(g). See, Matter of Dunlea v. Goldmark, supra, 54 A.D.2d
449, 389 N.Y.S.2d 423. Certainly, any information which merely
reports an event or factual occurrence, such as a conference,
telephone call, research, court appearance, or similar description of
legal work, and which does not disclose opinions, recommendations
or statements of legal strategy will not be barred from disclosure
under this exemption. See, Ingram v. Axelrod, supra" (id., 605-606).

In short, although it was found that some aspects of the records in question might
properly be withheld based on their specific contents, a blanket denial of access was
clearly inconsistent with law, and substantial portions of the records were found to be
accessible.

The preceding remarks are intended to enhance compliance with and understanding of
the Freedom of Information Law. A copy will also be sent to Mr. Perez. Should any
questions arise regarding the foregoing, please feel free to contact me.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Mr. Luis Perez