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June 26, 1998

 

 

Mr. James Leman
The Rockland Reporter
Box 58
Tappan, NY 10983

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 Mr. Leman:

I have received your letter of June 5 in which you sought an advisory opinion
concerning the propriety of a denial of access to certain records maintained by the Town of
Orangetown.

According to your letter, having requested the Planning Board file relating to "The
Rossi Subdivision, 97-32", you inspected its contents, which included three memoranda from
attorney for the Town that were addressed to Town officials. Despite having read the
memoranda, your request for copies of the those records was denied on the grounds that they
constitute intra-agency materials and are subject to the attorney-client privilege. You
contended that "once the records were entered as part of the record of the planning board and
a subsequent final determination has been made, those records no longer hold the
confidentiality status that they held prior to the planning boards [sic] decision."

If the records in question had been purposely disclosed, I would agree that the
authority for denying access would have been waived. Nevertheless, having spoken with
Town officials, it appears that the records were mistakenly disclosed. While the memoranda
might have been included in the file pertaining to the Rossi Subdivision, their placement in the
file does not necessarily signify that the entire contents of the file must be disclosed.
Frequently files on a particular subject or transaction include a variety of records, some of
which may clearly be withheld in whole or in part. Moreover, I was informed that the file was
retrieved for you by a summer employee, a student, and that after your review of the file and
your subsequent request for copies, the student was informed that the memoranda in question
should not have been made available for your inspection.

I note that it has been held that if a disclosure was inadvertent and was not made
"intelligently and voluntarily", an agency does not waive its right to deny access to a copy of
a record previously inspected [McGraw-Edison v. Williams, 509 NYS 2d 285, 287, 1986)].
In the case cited above, among the records inspected was a document that the agency
believed was exempted from disclosure and which should have been withheld, and it was held
that an inadvertent disclosure of an exempt records did not create a right to copy the record.
Therefore, if the records may justifiably be withheld, but they were inadvertently made
available for inspection, I believe that the Town could properly deny ensuing requests for the
records or a request that the records be copied.

Further, it appears that the records sought could properly have been withheld. 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. Both of the grounds for denial cited by the Town are pertinent to an analysis of
rights of access.

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.g., 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.

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)].

Based on the foregoing, assuming that the privilege has not been intelligently and
purposely waived, and that records consist of legal advice or opinion provided by counsel to
the client, such records would be confidential pursuant to §4503 of the Civil Practice Law and
Rules and, therefore, exempted from disclosure under §87(2)(a) of the Freedom of
Information Law. The fact that a determination has been made concerning the Rossi
Subdivision does not, in my view, alter the nature of the document or the ability of the Town
to deny access to the records in question. While I have not read the decision, I note that the
United States Supreme Court held yesterday that the attorney-client privilege remains
effective even after the death of a party to a privileged communication. While death is not
an issue in this instance, I believe that the essential holding would be equally applicable here.

The other ground for denial of potential significance, §87(2)(g), 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. It would appear that the record in question consists of an
expression of opinion. If that is so, it could be withheld under §87(2)(g).

I hope that the foregoing serves to clarify your understanding of the matter and that
I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director
RJF:jm
cc: Dennis D. Michaels, Deputy Town Attorney