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July 5, 2000

FOIL-AO-12192

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 May 18, which reached this office on May 30, as well as
a variety of material relating to it. The issues involve your attempt to obtain records
indicating the names and addresses of students so that you could send them "a flyer
supporting a busing proposition", and to obtain information concerning " a project at the
Commack Middle School where the school district cut down 2 acres of Huntington Town
Parkland in error."

In this regard, first, although the Freedom of Information Law generally governs
rights of access to records maintained by entities of state and local government in New York,
a federal statute deals with records identifiable to students. Specifically, the Family
Educational Rights and Privacy Act (FERPA; 20 USC §1232g) 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. An "eligible student" is defined in the Code of Federal Regulations to mean
"student who has reached 18 years of age or is attending an institution of post-secondary
education" (34 CFR §99.3).

An exception to the rule of confidentiality in FERPA involves "directory
information", which is defined in the regulations of the Department of Education (§99.3) to
include:

"....information contained in an education record of a student
which would not generally be considered harmful or an
invasion of privacy if disclosed. It includes, but is not limited
to the student's name, address, telephone listing, date and place
of birth, major field of study, participation in officially
recognized activities and sports, weight and height of members
of athletic teams, dates of attendance, degrees and awards
received, and the most recent previous educational agency or
institution attended."

Prior to disclosing directory information, educational agencies must provide notice to parents
of students or to eligible students in order that they may essentially prohibit any or all of the
items from being disclosed. Specifically, §99.37 of the regulations promulgated pursuant to
FERPA state in relevant part that:

"(a) An educational agency or institution may disclose
directory information if it has given public notice to parents of
students in attendance and eligible students in attendance at the
agency or institution of --

(1) The types of personally identifiable information that the
agency or institution has designated as directory information;

(2) A parent's or eligible student's right to refuse to let the
agency or institution designate any or all of those types of
information about the student as directory information; and

(3) The period of time within which a parent or eligible
student has to notify the agency or institution in writing that he
or she does not want any or all of those types of information
about the student designated as directory information."

The regulations also indicate that a consent to disclose can only be given by the
parent of a student under the age of eighteen; students have no rights under FERPA until they
reach the age of eighteen.

You attached a notice of the Commack Union Free School District's policy
concerning the disclosure of directory information. Unless there is an objection to disclosure
by parents of students under the age of eighteen or students who have reached age eighteen,
the notice indicates that students' names and addresses, as well as other items, will be made
available as directory information to:

"parent/teacher associations and representatives of the district's
insurance carriers, entities providing educational, occupational
or career opportunities, or to publish in the Commack Courier,
school student newspapers, magazines, yearbooks or other
publications, daily or weekly newspapers, athletic programs,
musical or theatrical programs, news releases..."

As I understand the matter, your request was denied, and, in my view, the question is
whether the denial was proper. From my perspective, the issue involves whether the
District's policy, if you were denied access, is reasonable. Although the policy appears to
permit limited disclosure, among those having the capacity to obtain directory information
are "daily or weekly newspapers." If newspapers can obtain directory information and freely
print or disseminate that information, it is questionable whether a school district could
justifiably withhold the same information from the public generally, unless it chooses to deny
access in conjunction with an exception appearing in the Freedom of Information Law. For
instance, §89(2)(b)(iii) of that statute authorizes an agency to withhold a list of names and
addresses if the list would be used for commercial or fund-raising purposes on the ground
that disclosure would constitute "an unwarranted invasion of personal privacy." As such, it
has been advised that a district's directory information policy could authorize the disclosure
of a list of student's names and addresses, unless the list would be used for commercial or
fund-raising purposes.

I am unaware of any judicial decision that deals with the issue. However, again, if the
names and addresses of students are available to newspapers, which have no special rights of
access pursuant to law, a policy of precluding disclosure or the same information to the
public generally might, in my opinion, be found to be unreasonable and unjustifiable.

Second, with respect to much of the remainder of the information in which you are
interested, it appears that the primary problem may be that the District does not maintain
records that contain the information of your interest. As you are aware, the Freedom of
Information Law pertains to existing records, and §89(3) states in part that an agency is not
required to create a record in response to a request. In one of the items of correspondence
that you forwarded, you indicated that you had received copies of contracts, but that there
was no reference in those documents to the project upon which you have focused, and that
there is "no breakdown on work being done or costs involved." You added that you "want to
know what the original project cost was estimated to cost & what we have actually paid to
date (including legal fees) for the tree clearing-drainage project..." In my opinion, insofar as
records exist that contain the information sought, they would generally be available.
However, if, for example, there is no "breakdown", the District would not be required to
prepare records on your behalf that include the information in question.

To the extent that records falling within the scope of your requests exist, I point out
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. In my opinion, bills, vouchers, contracts, receipts and similar records reflective of
payments made or expenses incurred by an agency or payments made to an agency's staff or
agents are generally available, for none of the grounds for denial would be applicable in most
instances.

With specific respect to payments to attorneys, the leading decision involved a
request for "the amount of money paid in 1994" to a particular law firm "for their legal
service in representing the County in its 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" [Orange County Publications v. County of Orange, 637 NYS2d 596
(1995)]. 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'." 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:

"...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. 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.

"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, 135 Misc.2d 126, 127-
128 [Sup. Ct. N.Y.Co. 1992]; see, De La Roche v. De Law
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. at 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:

"...it cannot be overlooked that '[n]ot every manifestation of a
lawyer's labors enjoys the absolute immunity of work product'
(Hoffman v. Ro-San Manor, 73 A.D.2d 207, 211, 425
N.Y.S.2d 619 [lst Dept. 1980]. Indeed, ‘[t]he exemption
should be limited to those materials which are uniquely the
product of a lawyer's learning and professional skills, such as
materials which reflect his research, analysis, conclusions, legal
theory or strategy.'

"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 [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 as material prepared for litigation, or both"
(emphasis added by the court); (id., 604-605).

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. 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..." (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. As
I understand your request, it was not as detailed as the request at issue in Orange County
Publications. It appears that your request involves amounts expended. In my view, those
aspects of the records would clearly be available.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director
RJF:jm
cc: Board of Education
James H. Hunderfund
Mary Jane Budde