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July 21, 1998

 

 

Mr. Rich DePaolo
P.O. Box 294
Ithaca, NY 14851

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 Mr. DePaolo:

I have received your letter of July 8. You have sought an advisory opinion concerning
a request made to the Town of Ithaca relating to "Cornell University's Lake Source Cooling
proposal." The Town, as well as other governmental entities, have been asked to approve the
proposal, and Cornell recently requested that the Town change the zoning of a parcel that it
owns.

When you requested records pertaining to the discussions and negotiations between
representatives of the Town and "elected or appointed representatives and Cornell
University", with the exception of audiotapes of a meeting and a hearing, the Town denied
access based on its assertion of the attorney-client privilege and the "intra-agency exclusion."

From my perspective, while some aspects of the records may likely be justifiably
withheld, others should likely be disclosed. In this regard, I offer the following comments.

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 waived, records
falling within the scope of the privilege 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 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 point out that Cornell University is neither a client nor apparently an agency in the
circumstances as you described them. As an applicant seeking an approval from the Town,
there would be no privilege that relates to the communications between the Town and
Cornell. Further, while it has been held that Cornell is an "agency" as that term is defined in
§86(3) of the Freedom of Information Law insofar as records pertain to its four statutory
colleges [see Stoll v. New York State College of Veterinary Medicine at Cornell University,
664 NYS2d 851, ___ AD2d ___ (1997)], it does not appear that Cornell is acting in the
situation described as a governmental entity; on the contrary, it appears to be acting as a
private entity seeking an approval from government.

If the assumption in the preceding paragraph is accurate, §87(2)(g) would not be
applicable with respect to communications between representatives of the Town and Cornell.

Insofar as the remaining documentation falls within the scope of §87(2)(g), its content
would determine the extent to which it must be disclosed or may be withheld. I point out that
one of the contentions offered by the New York City Police Department in a recent decision
rendered by the Court of Appeals was that certain reports could be withheld because they are
not final and because they relate to incidents for which no final determination had been made.
The Court rejected that finding and stated that:

"...we note that one court has suggested that complaint
follow-up reports are exempt from disclosure because they
constitute nonfinal intra-agency material, irrespective of
whether the information contained in the reports is 'factual
data' (see, Matter of Scott v. Chief Medical Examiner, 179
AD2d 443, 444, supra [citing Public Officers Law
§87[2][g][iii)]. However, under a plain reading of §87(2)(g),
the exemption for intra-agency material does not apply as long
as the material falls within any one of the provision's four
enumerated exceptions. Thus, intra-agency documents that
contain 'statistical or factual tabulations or data' are subject to
FOIL disclosure, whether or not embodied in a final agency
policy or determination (see, Matter of Farbman & Sons v.
New York City Health & Hosp. Corp., 62 NY2d 75, 83,
supra; Matter of MacRae v. Dolce, 130 AD2d 577)..." [Gould
et al. v. New York City Police Department, 87 NY2d 267,
276 (1996)].

In short, that records do not relate to or reflect a final determination would not
represent an end of an analysis of rights of access or an agency's obligation to review the
entirety of its contents.

The Court also dealt with the issue of what constitutes "factual data" that must be
disclosed under §87(2)(g)(i). In its consideration of the matter, 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)" (id., 276-277).

As you requested, copies of this opinion will be forwarded to those identified in your
letter.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: John Barney, Town Attorney
Joan Noteboom, Town Clerk
Mary Saxton
Cathy Valentino
Fred Wilcox