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April 5, 2000

FOIL-AO-12034

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 March 1, as well as a variety of related documentation.
You have sought an advisory opinion concerning the propriety of a denial of your request for
records by the Department of Law.

By way of background, in October, your colleague submitted a request to the
Department "for records relating to or reflecting (i) communications between NYSDOL and
the office of the Attorney General of New Mexico regarding public nuisance, natural resource
damage claims or other litigation against GE in New Mexico and/or New York; and (ii)
communications between NYSDOL and EPA regarding PCBs in the Hudson River.".
Although some of the records sought were disclosed, others were withheld for several
reasons offered as follows by the Department's Records Access Appeals Officer:

"The bulk of the records you seek are materials that the United
States Environmental Protection Agency provided to the Office
of the New York State Attorney General in connection with
their joint investigation of PCB contamination in the Hudson
River. These materials are specifically exempt from disclosure
by Federal and State statutes. See Public Officers Law §
87(2)(a). These materials are not subject to disclosure because
they were compiled for law enforcement purposes and
disclosure would interfere with this ongoing investigation
(Public Officers Law § 87(2)(e)(i); they are inter-agency
deliberative materials or communications exchanged for
discussion purposes not constituting final policy decisions
(Public Officers Law §87(2)(g); and/or they are privileged, pre-
decisional draft documents (Public Officers Law § 87(2)(g),
Fed. R. Civ. Proc. 26(b)(3); F.R.E. Rule 501, 40 CFR §
300.810 (c) and (d).

"The remainder of the records your appeal seeks were
generated by the Office of the Attorney General. These
records, including notes respecting telephone conversations
and/or meetings, electronic communications, and letters
regarding potential litigation, are specifically exempt from
disclosure by State statutes. See Public Officers Law §
87(2)(a). These materials are not subject to disclosure because
they constitute work product (CPLR § 3101(c); they are
protected by the attorney-client privilege (CPLR § 4503(a));
and/or they were prepared in anticipation of litigation (CPLR §
3101(d)(2)). With regard to privilege, our work product is
generated in the representation of the State; this privilege
belongs to the State and its representatives.

"An additional record exists that is not being disclosed because
it too was prepared in anticipation of litigation (Public Officers
Law § 87(2)(a), CPLR § 3101(d)(2))."

In conjunction with the foregoing, you have asked:

"1. Whether materials/communications between the New York
State Department of Law (NYDOL) and the United State
Environmental Protection Agency (EPA) regarding PCBs in
the Hudson River ‘in connection with their joint investigation,'
are exempt from disclosure because they were compiled for
‘law enforcement purposes' in furtherance of an ‘ongoing
investigation;'

2. Whether such materials/communications (described above)
are exempt from disclosure because they are inter-agency
documents exchanged for discussion purposes not final policy
decisions; and

3. Whether such materials/communications (described above)
are immune from disclosure because they are ‘privileged, pre-
decisional draft documents.'"

Although several of the issues raised in your letter were considered in an opinion
rendered in relation to a request made to a different agency, because a copy of this response
will be forwarded to the Department's Records Access Appeals Officer, I will reiterate some
of the commentary included in that opinion.

It is emphasized at the outset that 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. 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 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.

The provision to which you initially alluded, §87(2)(e), states that an agency may
withhold records that:

"are compiled for law enforcement purposes and which, if
disclosed, would:

i. interfere with law enforcement investigations or judicial
proceedings;

ii. deprive a person of a right to a fair trial or impartial
adjudication;

iii. identify a confidential source or disclose confidential
information relating to a criminal investigation; or

iv. reveal criminal investigative techniques or procedures,
except routine techniques and procedures."

From my perspective, the exception quoted above is limited in its application. First, I believe
that it pertains only to records that were "compiled for law enforcement purposes." There are
many instances in which records are prepared in the ordinary course of business but later are
used in or are relevant to a law enforcement investigation. In my view, the character of the
records does not change due to their significance to an investigation. For instance, in a case
in which minutes of meetings of a municipal board were subpoenaed by a district attorney for
presentation before a grand jury and were later requested under the Freedom of Information
Law, the court rejected the district attorney's contention that the records were compiled for
law enforcement purposes. On the contrary, because the minutes were prepared in the
ordinary course of business and had been accessible to the public prior to their use in an
investigation, they were no less accessible thereafter merely because they were being used in
conjunction with an investigation (King v. Dillon, Supreme Court, Nassau County, December
19, 1984). In short, insofar as the records sought were prepared in the ordinary course of
business and not for use in an investigation, I do not believe that §87(2)(e) would be
applicable.

Further, your letter indicates that your associate "contacted EPA, which has
confirmed that it does not have a law enforcement investigation ongoing, including any type
of joint investigation with NYSDOL." If that is so, again, it would appear that §87(2)(e)
would be inapplicable.

Even when records have been compiled for law enforcement purposes, the ability to
deny access is limited to those portions of the records which if disclosed would result in the
harmful effects described in subparagraphs (i) through (iv) of §87(2)(e). I note, too, as you
suggested, that not every investigation can necessarily be characterized as a "law
enforcement investigation." For example, an audit might be considered an investigation, but
it might not involve any law enforcement function.

If the information given to your associate by the EPA is accurate, the ability of the
Department of Law to rely on its assertion that disclosure would interfere with a law
enforcement investigation would in my view be questionable at best.

With respect to the ability of the Department to withhold communications between
the Department of Law and the EPA on the ground that they are "inter-agency documents",
as indicated in the earlier opinion addressed to you, §86(3) of the Freedom of Information
Law defines the term "agency" to mean:

"any state or municipal department, board, bureau, division,
commission, committee, public authority, public corporation,
council, office or other governmental entity performing a
governmental or proprietary function for the state or any one or
more municipalities thereof, except the judiciary or the state
legislature."

The language quoted above indicates that an "agency" is an entity of state or local
government in New York. Since the definition of "agency" does not include a federal
agency, §87(2)(g) could not be cited as a means of withholding communications with or from
a federal entity. I note that there is case law involving the assertion of §87(2)(g) in relation to
communications between agencies and entities other than New York state or municipal
governments. In those instances, it was held that the assertion of §87(2)(g) was erroneous
[see e.g., Community Board 7 of Borough of Manhattan v. Schaeffer, 570 NYS 2d 769;
affirmed, 83 AD2d 422; reversed on other grounds, 84 NY2d 148 (1994); also Leeds v.
Burns, Supreme Court, Queens Cty., NYLJ, July 27, 1992; aff'd 613 NYS 2d 46, 205 AD2d
540 (1994)].

While the EPA is an agency for purposes of the federal Freedom of Information Act
(5 USC §552) and its exceptions, it falls beyond the definition of "agency" as that term is
defined by the state statute. The reverse would also be so: while the Department of Law is an
agency under the state statute, it is not an agency for purposes of the federal Act (see 5 USC
§551).

In related correspondence the contention appears to have been made that if a federal
agency may withhold a record under the federal Freedom of Information Act, a state agency
in possession of that record may claim that the records is "specifically exempted from
disclosure by...statute" pursuant to §87(2)(a) of the New York Freedom of Information Law.
In my opinion a claim of that nature cannot be validly be made.

The provision in the federal Act analogous to §87(2)(g), §552(b)(5), is the so-called
"deliberative process" exemption. In my view, the Department cannot assert that provision
as a basis for withholding its records, for several decisions indicate that only federal agencies
subject to the federal Act may assert an exemption appearing in the federal Act [see Grand
Central Partnership, Inc. v. Cuomo, 166 F.2d 473, 484 (1999); also Philip Morris, Inc. v.
Harshbarger, 122 F.3d 58, 83 (1st Cir.1997); Day v. Shalala, 23 F.3d 1052, 1064 (9th
Cir.1994); Brown v. Kelly, No. 93-5222, 1994 WL 36144, at *1 (D.C.Cir. January 27, 1994);
St. Michael's Convalescent Hosp. v. State of California, 643 F.2d 1369, 1373 (9th Cir.1981);
Johnson v. Wells, 566 F.2d 1016, 1018 (5th Cir.1978)].

More importantly, based on judicial decisions involving exceptions to rights of access
in both the state and federal freedom of information statutes, the records at issue would not
be "specifically exempted from disclosure by...statute pursuant to §87(2)(a) of the New York
Freedom of Information Law or pursuant to its counterpart in the federal Act, the "(b)(3)"
exception. Both the Court of Appeals and federal courts in construing access statutes have
determined that the characterization of records as "confidential" or "exempted from
disclosure by statute" must be based on statutory language that specifically confers or
requires confidentiality. As stated by the Court of Appeals:

"Although we have never held that a State statute must
expressly state it is intended to establish a FOIL exemption, we
have required a showing of clear legislative intent to establish
and preserve that confidentiality which one resisting disclosure
claims as protection" [Capital Newspapers v. Burns, 67 NY2d
562, 567 (1986)].

An example of the proper assertion of a claim that records were "specifically exempted from
disclosure by...statute" would involve a statute stating an agency "shall not provide" certain
information. In that kind of situation, there would be clear direction in a statute prohibiting
the disclosure of certain information, and it has been so advised that §87(2)(a) may properly
be asserted.

Similarly, in construing the equivalent exception to rights of access in the federal Act,
it has been found that:

"Exemption 3 excludes from its coverage only matters that are:

specifically exempted from disclosure by statute
(other than section 552b of this title), provided
that such statute (A) requires that the matters be
withheld from the public in such a manner as to
leave no discretion on the issue, or (B)
establishes particular criteria for withholding or
refers to particular types of matters to be
withheld.

"5 U.S.C. § 552(b)(3) (1982) (emphasis added). Records
sought to be withheld under authority of another statute thus
escape the release requirements of FOIA if – and only if – that
statute meets the requirements of Exemption 3, including the
threshold requirement that it specifically exempt matters from
disclosure. The Supreme Court has equated ‘specifically' with
‘explicitly.' Baldridge v. Shapiro, 455 U.S. 345, 355, 102 S.
Ct. 1103, 1109, 71 L.Ed.2d 199 (1982). ‘[O]nly explicitly non-
disclosure statutes that evidence a congressional determination
that certain materials ought to be kept in confidence will be
sufficient to qualify under the exemption.' Irons & Sears v.
Dann, 606 F.2d 1215, 1220 (D.C.Cir.1979) (emphasis added).
In other words, a statute that is claimed to qualify as an
Exemption 3 withholding statute must, on its face, exempt
matters from disclosure"[Reporters Committee for Freedom of
the Press v. U.S. Department of Justice, 816 F.2d 730, 735
(1987); modified on other grounds,831 F.2d 1184 (1987);
reversed on other grounds, 489 U.S. 789 (1989); see also
British Airports Authority v. C.A.B., D.C.D.C.1982, 531
F.Supp. 408; Inglesias v. Central Intelligence Agency,
D.C.D.C.1981, 525 F.Supp, 547; Hunt v. Commodity Futures
Trading Commission, D.C.D.C.1979, 484 F.Supp. 47; Florida
Medical Ass'n, Inc. v. Department of Health, Ed. & Welfare,
D.C.Fla.1979, 479 F.Supp. 1291].

In short, to be "exempted from disclosure by statute", both state and federal courts have
determined that a statute must leave no discretion to an agency: it must withhold such
records.

In contrast, when records are not exempted from disclosure by a separate statute, both
the Freedom of Information Law and its federal counterpart are permissive. Although an
agency may withhold records in accordance with the grounds for denial appearing in §87(2),
the Court of Appeals in a decision cited earlier held that the agency is not obliged to do so
and may choose to disclose, stating that:

"...while an agency is permitted to restrict access to those
records falling within the statutory exemptions, the language of
the exemption provision contains permissible rather than
mandatory language, and it is within the agency's discretion to
disclose such records...if is so chooses" (Capital Newspapers,
supra, 567).

The only situations in which an agency cannot disclose would involve those instances in
which a statute other than the Freedom of Information Law prohibits disclosure. The same is
so under the federal Act. While a federal agency may withhold records in accordance with
the grounds for denial, it has discretionary authority to disclose.

Even if the Department of Law or EPA had the authority to withhold records under
either §87(2)(g) of the state statute or the (b)(5) exception in the federal Act, neither would be
required to withhold the records; on the contrary, they would have the discretionary authority
to disclose. That being so, I do not believe that the records at issue could be characterized as
being exempted from disclosure by statute.

In a related vein, it was suggested by the Department that "executive privilege" or the
common law "governmental privilege" may be asserted to withhold records, notwithstanding
the requirements of the Freedom of Information Law. From my perspective, reliance on a
claim of privilege would be misplaced. Reference to executive privilege and the Freedom of
Information Law was made in a footnote in Cirale v. 80 Pine St. Corp. [35 NY2d 113
(1974)], which was decided after the enactment but before the effective date of the Freedom
of Information Law in 1974. In 1977, the original enactment was repealed and replaced with
the current version of that statute, which became effective in 1978. Soon after the change in
the law, the Court of Appeals appears to have abolished the governmental privilege in the
context of requests made under the Freedom of Information Law. As stated by the Court in
1979: "[T]he common-law interest privilege cannot protect from disclosure materials which
that law requires to be disclosed" [Doolan v. BOCES, 48 NY2d 341, 347]. In short, either
records or portions thereof fall within the grounds for denial appearing in §87(2) or they do
not; if they do not, there would be no basis for denial, notwithstanding a claim based on an
assertion of executive or governmental privilege.

Lastly, many of the records sought were denied on the ground that they are attorney
work product, material prepared for litigation or are subject to the attorney-client privilege.
Insofar as those claims are accurate, I believe that the records would be exempt from
disclosure pursuant, respectively, to subdivisions (c) and (d) of §3101 and §4503 of the
CPLR and, therefore, §87(2)(a) of the Freedom of Information Law. However, the ability to
withhold records under those provisions is specific and limited.

Section 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." The other provision 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 to others. 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.

It is also noted that it has been determined judicially that if records are prepared for
multiple purposes, one of which includes eventual use in litigation, §3101(d) does not serve
as a basis for withholding records; only when records are prepared solely for litigation can
§3101(d) be properly asserted to deny access to records [see e.g., Westchester-Rockland
Newspapers v. Mosczydlowski, 58 AD 2d 234 (1977)].

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Thomas B. Litsky
Terryl L. Brown
Harold Iselin