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December 22, 1999

FOIL-AO-11858

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

I have received your letter of November 2 in which you sought an advisory opinion
concerning a request made under the Freedom of Information Law.

According to your letter, the Suffolk County Water Authority ("SCWA") "was a party
defendant along with other defendants in three lawsuits concerning the same land transaction
commence by a resident of a particular Town." In an appearance before a federal judge, the
parties represented by counsel, including the SCWA, "entered into a colloquy on the record" and
a "Transcript of Conference" was prepared. In brief, the Transcript indicates that the parties
agreed to settle the action and "agreed to confidentiality of the terms of the stipulation." One
of the attorneys added that "[n]o one shall report, unless required by law, the financial terms or
any of the other terms except as may be reflected in duly prepared and recorded property
documents." After similar and related statements, the Court asked: "Do the parties understand
that a confidentiality agreement means that they can't discuss this other than among themselves
with anyone,....And if the plaintiffs reveal these terms there can be a request to rescind the money
and start all over again." The attorneys said that they understood and the Transcript ended there.

The request involves "[a]ny and all agreements, stipulations of settlement, dedication
agreements written or oral that has been entered into by all parties." In this regard, I offer the
following comments.

The language quoted above that I italicized is, in my view, critical, for the confidentiality
agreement specifies that no disclosure would be made "unless required by law", and the judge
referred to the inability to "discuss" the stipulation. From my perspective, the parties could
validly agree not to speak about the settlement. However, the Freedom of Information Law
pertains to records, not to speech. In a decision that is somewhat analogous to the matter that
you described, Paul Smith's College of Arts and Sciences v. Cuomo, it was stated that:

"Plaintiff was the subject of a complaint made by a former
employee who alleged that he was a victim of age discrimination.
Prior to a scheduled hearing and with the assistance of an
employee of defendant State Division of Human Rights
(hereinafter SDHR), plaintiff entered into a stipulation of
settlement with the complaining employee. Plaintiff's stated
purpose for settling was to eliminate any negative publicity
resulting from a public hearing on the allegations. The order after
stipulation signed by defendant Commissioner of Human Rights
on August 23, 1989 provided for absolute confidentiality except
for enforcement purposes. The order also provided for the
withdrawal of the charges and discontinuance of the
administrative proceeding. Plaintiff did not admit to a Human
Rights violation. On October 27, 1989, SDHR issued a press
release detailing the allegations, disclosing that the matter hade
been settled and set forth certain parts of the settlement terms"
[589 NYS2d 106,107, 186 AD2d 888 (1992)].

The Appellate Division determined that the issuance of the press release "was both arbitrary and
capricious and an abuse of discretion" (id.), but it also found that the stipulation of settlement
was subject to rights of access conferred by the Freedom of Information Law.

I note that it has been held in variety of circumstances that a promise or assertion of
confidentiality cannot be upheld, unless a statute specifically confers confidentiality. In Gannett
News Service v. Office of Alcoholism and Substance Abuse Services [415 NYS 2d 780 (1979)],
a state agency guaranteed confidentiality to school districts participating in a statistical survey
concerning drug abuse. The court determined that the promise of confidentiality could not be
sustained, and that the records were available, for none of the grounds for denial appearing in
the Freedom of Information Law could justifiably be asserted. In a decision rendered by the
Court of Appeals, it was held that a state agency's:

"long-standing promise of confidentiality to the intervenors is
irrelevant to whether the requested documents fit within the
Legislature's definition of 'record' under FOIL. The definition
does not exclude or make any reference to information labeled as
'confidential' by the agency; confidentiality is relevant only when
determining whether the record or a portion of it is exempt..."
[Washington Post v. Insurance Department, 61 NY 2d 557, 565
(1984)].

In short, as I understand the matter, the parties are precluded from discussing the matter
or divulging information regarding the settlement on their own initiative. However, if a record
indicating the terms of the stipulation of settlement is requested under the Freedom of
Information Law, the SCWA or any other agency that may have possession of the record would,
in my view, be required to disclose to the extent "required by law."

With respect to rights of access, as 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.

The first ground for denial, §87(2)(a), pertains to records that "are specifically exempted
from disclosure by state or federal statute." From my perspective, although §3101(c) and (d) of
the CPLR authorize confidentiality regarding, respectively, the work product of an attorney and
material prepared for litigation, those kinds of records remain confidential in my opinion only
so long as they are not disclosed to 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.

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 either 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)].

In my view, since the record in question has been communicated among and is known
by the parties, any claim of privilege or its equivalent would be effectively waived.

In sum, it appears that the SCWA would be "required by law", i.e., the Freedom of
Information Law, to disclose the stipulation of settlement in response to a request for that record.

I hope that I have been of assistance. Should any further questions arise, please feel free
to contact me.

Sincerely,

Robert J. Freeman
Executive Director

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