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May 3, 1999

 

Ms. Karen Rowell
P.O. Box 864
Syracuse, NY 13206

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. Rowell:

I have received your letter of March 19, which reached this office on April 8. You
have sought an advisory opinion concerning a request for invoices for legal services provided
to the East Syracuse-Minoa Central School District during a certain period. You were
informed initially that you would be required to submit your request on a prescribed form.
Further, in response to the request, you were provided with gross figures, rather than the
invoices themselves. It is your view that the invoices should have been disclosed, perhaps
following redactions.

From my perspective, the District could not have validly required that you seek
records on its form. Moreover, for reasons to be discussed in detail, the invoices should have
been disclosed following deletions when appropriate. In this regard, I offer the following
comments.

First, by way of background, §89(1) of the Freedom of Information Law requires the
Committee on Open Government to promulgate regulations concerning the procedural
implementation of that statute (21 NYCRR Part 1401). In turn, §87(1) requires the
governing body of a public corporation to adopt rules and regulations consistent those
promulgated by the Committee and with the Freedom of Information Law. The Law, §89(3),
and the regulations, §1401.5, require that an agency respond to a request that reasonably
describes the record sought within five business days of the receipt of a request. The
regulations indicate that "an agency may require that a request be made in writing or may
make records available upon oral request" [§1401.5(a)]. Neither the Law nor the regulations
refer to, require or authorize the use of standard forms. Accordingly, it has consistently been
advised that any written request that reasonably describes the records sought should suffice.

It has consistently been advised that a failure to complete a form prescribed by an
agency cannot serve to delay a response or deny a request for records. A delay due to a
failure to use a prescribed form might result in an inconsistency with the time limitations
imposed by the Freedom of Information Law. For example, assume that an individual
requests a record in writing from an agency and that the agency responds by directing that a
standard form must be submitted. By the time the individual submits the form, and the agency
processes and responds to the request, it is probable that more than five business days would
have elapsed, particularly if a form is sent by mail and returned to the agency by mail.
Therefore, to the extent that an agency's response granting, denying or acknowledging the
receipt of a request is given more than five business days following the initial receipt of the
written request, the agency, in my opinion, would have failed to comply with the provisions
of the Freedom of Information Law.

While the Law does not preclude an agency from developing a standard form, as
suggested earlier, I do not believe that a failure to use such a form can be used to delay a
response to a written request for records reasonably described beyond the statutory period.
However, a standard form may, in my opinion, be utilized so long as it does not prolong the
time limitations discussed above. For instance, a standard form could be completed by a
requester while his or her written request is timely processed by the agency. In addition, an
individual who appears at a government office and makes an oral request for records could
be asked to complete the standard form as his or her written request.

In sum, it is my opinion that the use of standard forms is inappropriate to the extent
that is unnecessarily serves to delay a response to or deny a request for records.

Second, 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 §87(2)(a) through (i) of the Law. It is
emphasized that the introductory language of §87(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, the State's highest court, expressed its general view of the
intent of the Freedom of Information Law most recently in 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 § 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, §87(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.).

Pertinent with respect to the records that you requested is a decision, Orange County
Publications v. County of Orange [637 NYS2d 596 (1995)], that 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 §87(2)(a) of the Freedom of Information Law and
the assertion of the attorney-client privilege pursuant to §4503 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, ‘[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, §3101(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 §87(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 §87(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 §87(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.

In the context of a school district's duties, insofar as the records identify or could
identify particular students, I believe that they must be withheld. Another statute that
exempts records from disclosure is the Family Education Rights and Privacy Act ("FERPA",
20 U.S.C. §1232g). In brief, FERPA applies to all educational agencies or institutions that
participate in grant programs administered by the United States Department of Education.
As such, FERPA includes within its scope virtually all public educational institutions and
many private educational institutions. The focal point of the Act is the protection of privacy
of students. It provides, in general, that any "education record," a term that is broadly
defined, that is personally identifiable to a particular student or students is confidential, unless
the parents of students under the age of eighteen waive their right to confidentiality, or unless
a student eighteen years or over similarly waives his or her right to confidentiality. Further,
the federal 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
Section 99.3).

Based upon the foregoing, references to students' 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. Similarly, references to employees involved in disciplinary
proceedings when such proceedings have not resulted in any final determination reflective of
misconduct could be withheld on the ground that disclosure would constitute "an
unwarranted invasion of personal privacy" [see Herald Company v. School District of the City
of Syracuse, 430 NY 2d 460 (1980)].

In a decision dealing specifically with bills involving services rendered by attorneys
for a school district, that matter involved an applicant ("petitioner") who sought billing
statements for legal services provided to the Board ("respondents") by a law firm. Since the
statements made available included "only the time period covered and the total amount owed
for services and disbursements", petitioner contended that "she is entitled to that billing
information which would detail the fee, the type of matter for which the legal services were
rendered and the names of the parties to any current litigation". In its discussion of the issue,
the court found that:

"The difficulty of defining the limits of the attorney client
privilege has been recognized by the New York State Court of
Appeals. (Matter of Priest v. Hennessy, 51 NY2d 62, 68.)
Nevertheless, the Court has ruled that this privilege is not
limitless and generally does not extend to the fee arrangements
between an attorney and client. (Matter of Priest v. Hennessy,
supra.) As a communication regarding a fee has no direct
relevance to the legal advice actually given, the fee
arrangement is not privileged. (Matter of Priest v. Hennessy,
supra. at 69.)

"There appear to be no New York cases which specifically
address how much of a fee arrangement must be revealed
beyond the name of the client, the amount billed and the terms
of the agreement. However, the United States Court of
Appeals, in interpreting federal law, has found that questions
pertaining to the date and general nature of legal services
performed were not violative of client confidentiality. (Cotton
v. United States, 306 F.2d 633.) In that Court's analysis such
information did not involve the substance of the matters was
not privileged...

"...Respondents have not justified their refusal to obliterate
any and all information which would reveal the date, general
nature of service rendered and time spent. While the Court
can understand that in a few limited instances the substance of
a legal communication might be revealed in a billing statement,
Respondents have failed to come forward with proof that such
information is contained in each and every document so as to
justify a blanket denial of disclosure. Conclusory
characterizations are insufficient to support a claim of
privilege. (Church of Scientology v. State of New York, 46
NY 2d 906, 908.)...Therefore, Petitioner's request for
disclosure of the fee, type of matter and names of parties to
pending litigation on each billing statement must be granted."

In sum, as you suggested, the blanket denial of access by the District was inconsistent
with the language of the Freedom of Information Law and judicial interpretations of that
statute.

In an effort to enhance compliance with and understanding of the Freedom of
Information Law, copies of this opinion will be forwarded to District officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Board of Education
Dr. Fritz Hess
Frederick N. Thomsen