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July 27, 1999

Mr. Randy Cahill
340 Ashland Avenue
State Island, NY 10309-3056

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. Cahill:

I have received your letter of June 20, as well as a variety of materials relating to it.
As I understand the matter, you initiated a claim against New York City following flooding
that damaged your property during a rainstorm that occurred in July of 1996. Following the
storm and the initiation of numerous claims, reports were prepared and evidence was acquired
by the Department of Environmental Protection ("DEP"), and you apparently requested those
records under the Freedom of Information Law.

Having contacted Ms. Charlotte Abo-Comitini at the DEP on your behalf to learn
more of the matter, I was informed that a report pertaining specifically to your property has
been made available to you, but that another report and other materials prepared for the
Comptroller in response to claims made following the storm have been withheld. If my
understanding of the facts is accurate, it appears that a denial of access to those materials was
consistent with law. 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.

Relevant under the circumstances in my view is the first ground for denial, §87(2)(a),
which pertains to the ability to withhold records that "are specifically exempted from
disclosure by state or federal statute." Because the records were prepared following the
initiation of claims against the City, it appears that the records would fall within the scope of
subdivisions (c) and/or (d) of §3101of the Civil Practice Law and Rules ("CPLR").

Section §3101 pertains to 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 limitations on disclosure.

One of those limitations, §3101(c), states that "[t]he work product of an attorney shall
not be obtainable", and §3101(d)(2) dealing with material prepared in anticipation of litigation
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. 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 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)].

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 sum, assuming that the records in question consist of the work product of an
attorney or were prepared in anticipation of litigation, the denial of your request, in my
opinion, was proper.

Lastly, I note that your request was made on the basis of 5 USC §552. That provision
is the federal Freedom of Information Act, which applies only to records maintained by
federal agencies. The statute that deals generally with public access to records of state and
local government in New York, as suggested in the body of this opinion, is the New York
Freedom of Information Law. Further, while federal agencies may be required to prepare an
index identifying each record that has been withheld with a justification for the withholding,
there is no such requirement in the New York Freedom of Information Law.

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

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Charlotte Abo-Comitini