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May 17, 1999

 

Mr. Jeffrey Shankman
JMJ Associates
P.O. Box 3338
New York, NY 10163-3338

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. Shankman:

I have received your letter of April 22 and the materials attached to it. As I
understand the matter, the documentation relates to a request for records made to the
Department of Public Service for records pertaining to settlement negotiations involving the
Department and the parties to a proceeding cited as Case 98-C-1079.

While some of the records sought were disclosed, others underwent substantial
redaction pursuant to §87(2)(g) of the Freedom of Information Law. With respect to the
remaining records that were withheld, Mr. Steven Blow, the Department's Records Access
Officer, wrote that:

"they are excepted from disclosure pursuant to a specific State
statute - namely, §3101(c) of the Civil Practice Law and
Rules, which sets forth the attorney work product privilege.
Please be advised as well that the Department has in its
possession more than 100 documents that are excepted from
disclosure pursuant to POL §87(2)(a) in that they are
‘confident information' [sic] within the meaning of §15 of the
Public Service Law, which prohibits employees and agents of
the Department from divulging such information. I find that
such ‘confidential information' includes ‘discussions,
admissions, concessions and offers to settle,' within the
meaning of 16 NYCRR §3.9(d)."

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.

Insofar as the request involved intra-agency materials, §87(2)(g) authorizes 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.

If the deletions from intra-agency materials do not consist of the kinds of information
described in subparagraphs (i) through (iv) of §87(2)(g), I believe that they would have
properly been made.

With respect to the remainder of the records at issue, the analysis is more complex,
for it involves several provisions of law. Among them is §15 of the Public Service Law,
which states in relevant part that:

"Any employee or agent of the department who divulges any
confidential information which may come to his knowledge
during the course of any inspection or examination of
property, accounts, records or memoranda of any person,
corporation or municipality subject to the jurisdiction of the
commission, except insofar as he may be directed by the
commission, or by a court or judge, or authorized by law, shall
be guilty of a misdemeanor."

Another is 16 NYCRR §3.9(d), which is entitled "Confidentiality of settlement discussions"
and states that:

"No discussion, admission, concession or offer to stipulate or
settle, whether oral or written, made during any negotiation
session concerning a stipulation or settlement shall be subject
to discovery, or admissible in any evidentiary hearing against
any participant who objects to its admission. Participating
parties, their representatives and other persons attending
settlement negotiations shall hold confidential such
discussions, admissions, concessions, and offers to settle and
shall not disclose them outside the negotiations except to their
principals, who shall also be bound by the confidentiality
requirement, without the consent of the parties participating
in the negotiations. The Administrative Law Judge assigned
to the case, or the director of the appropriate division if no
judge has been assigned, may impose appropriate sanctions for
the violation of this subdivision which may include exclusion
from the settlement process."

Based on Mr. Blow's response, it appears that the basis for the promulgation of
§3.9(d) is the authority to withhold "confidential information" pursuant to §15 of the Public
Service Law. From my perspective, the term "confidential" is unclear, and the extent to
which the Department may claim confidentiality under that statute is equally unclear. In my
view, it may be contended that §15 merely permits the Department to confer confidentiality
with respect to those records that may be withheld under the Freedom of Information Law.

I note that §15 was initially enacted in 1910, as was §16. Subdivision (1) of the latter
states that "All proceedings of the commission and all documents and records in its possession
shall be public records." If construed literally, all records of the Public Service Commission,
without exception, would be accessible to any person. However, in considering language in
a statute that was enacted prior to the Freedom of Information Law that is as broad as §16,
the Court of Appeals found, in essence, that such a result would be anomalous. In brief, §51
of the General Municipal Law states that all records of a municipality are public.
Nevertheless, in responding to a contention that §51 requires that all records of a municipality
be made available, regardless of their contents, the Court of Appeals held in 1985 that:

"Such a result would nullify the FOIL exemptions, which the
Legislature - presumably aware of General Municipal Law §51
at the time it enacted FOIL - could not have intended. To
give effect to both statutes, the FOIL exemptions must be read
as having engrafted, as a matter of public policy, certain
limitations on the disclosure of otherwise accessible records"
[Xerox Corporation v. Town of Webster, 65 NY 131, 490
NYS 2d 488, 489 (1985)].

In my view, despite the breadth of the language ostensibly granting access to records
of the Department of Public Service pursuant to §16, the exceptions in the Freedom of
Information Law, as in the case of §51 of the General Municipal Law, should be considered
to have been "engrafted" onto §16.

While there is no judicial decision on the matter of which I am aware, it is likely in my
opinion that the same principle would apply with respect to the ability to claim that records
are confidential under §15 of the Public Service Law. Because that statute was enacted long
prior to the Freedom of Information Law, and because it does not refer to particular records,
but rather to a non-specific capacity to claim confidentiality, a court, as in Xerox, may
consider that confidentiality may be claimed only in conjunction with the exceptions to rights
of access appearing in §87(2) of the Freedom of Information Law.

If that conclusion may be reached, and if §3.9(d) of the regulations is based on the
authority to withhold records conferred by §15, the regulations would authorize the
Department to deny access to its records only to the extent authorized by the Freedom of
Information Law. Similarly, if there is no statutory basis for the confidentiality provisions
contained in the regulation in question, the same conclusion would be reached, that the
Department could not withhold records unless a statute so permits, i.e., the Freedom of
Information Law. I note that it has been held by several courts, including the Court of
Appeals, that an agency's regulations or the provisions of a local enactment, such as an
administrative code, local law, charter or ordinance, for example, do not constitute a "statute"
[see e.g., Morris v. Martin, Chairman of the State Board of Equalization and Assessment, 440
NYS 2d 365, 82 Ad 2d 965, reversed 55 NY 2d 1026 (1982); Zuckerman v. NYS Board of
Parole, 385 NYS 2d 811, 53 AD 2d 405 (1976); Sheehan v. City of Syracuse, 521 NYS 2d
207 (1987)]. Therefore, for purposes of §87(2)(a) of the Freedom of Information Law
concerning records that "are specifically exempted from disclosure by state or federal statute",
an agency's regulations would not constitute a statute that could diminish rights of access
otherwise conferred by law.

In conjunction with the foregoing, if the Freedom of Information Law governs rights
of access, the claims of confidentiality with respect to documents prepared in relation to
settlement discussions would in my opinion be questionable.

Mr. Blow's response cited §3101(c) of the Civil Practice Law and Rules (CPLR),
which exempts attorney work product from disclosure. Insofar as that provision may validly
be asserted, I believe that the records would be exempt from the Freedom of Information Law
in accordance with §87(2(a). From my perspective, although §3101(c) of the CPLR
authorizes confidentiality regarding the work product of an attorney, those records remain
confidential in my opinion only so long as they are not disclosed to a third party or 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 you may be aware, §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." Another provision that may be 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 those 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.

In my view, insofar as the records in question have been communicated between or
among the Department and the parties, any claim of privilege or its equivalent would be
effectively waived. Once records in the nature of attorney work product or material prepared
for litigation are transmitted to a third party, 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.

If the preceding analysis is accurate, the extent to which the records sought may be
withheld would be limited.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Steven Blow
Gerald L. Lynch