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July 31, 2000

FOIL-AO-12238

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 letters of June 24 and July 7, as well as the materials attached to
them.

By way of background, you requested records "in the possession of the City of New
Rochelle pertaining to any proposal to build an IKEA store..." in the City, correspondence
between the City and IKEA and "drafts of the Draft Environmental Impact Statement." The
drafts were apparently prepared by a consultant retained by IKEA. Although some
documentation was made available, you were informed that "correspondence between the
developer and the City is forwarded to the City's special counsel...and that it was therefore
‘privileged' and that [you] could not view it."

You have asked "whether correspondence between a developer (including a draft of a
Draft Environmental Impact Statement, if one exists) and a City are accessible to the public even
if they have been forwarded to the City's special counsel and/or its law department." From my
perspective, the records in question, insofar as they exist, must be disclosed. In this regard, I
offer the following comments.

First, the site where the records are kept has no bearing on rights of access. The Freedom
of Information Law pertains to agency records, and §86(4) of the Freedom of Information Law
defines the term "record" expansively to include:

"any information kept, held, filed, produced, reproduced by, with
or for an agency or the state legislature, in any physical form
whatsoever including, but not limited to, reports, statements,
examinations, memoranda, opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings, maps, photos, letters,
microfilms, computer tapes or discs, rules, regulations or codes."

Based upon the language quoted above, documents need not be in the physical possession of an
agency, such as a city, to constitute agency records; so long as they are produced, kept or filed
for an agency, the courts have held they constitute "agency records", even if they are maintained
apart from an agency's premises.

For instance, it has been found that records maintained by an attorney retained by an
industrial development agency were subject to the Freedom of Information Law, even though an
agency did not possess the records and the attorney's fees were paid by applicants before the
agency. The Court determined that the fees were generated in his capacity as counsel to the
agency, that the agency was his client, that "he comes under the authority of the Industrial
Development Agency" and that, therefore, records of payment in his possession were subject to
rights of access conferred by the Freedom of Information Law (see C.B. Smith v. County of
Rensselaer, Supreme Court, Rensselaer County, May 13, 1993).

Additionally, in a decision rendered by the Court of Appeals, the state's highest court, it
was found that materials received by a corporation providing services for a branch of the State
University that were kept on behalf of the University constituted "records" falling with the
coverage of the Freedom of Information Law. I point out that the Court rejected "SUNY's
contention that disclosure turns on whether the requested information is in the physical
possession of the agency", for such a view "ignores the plain language of the FOIL definition of
'records' as information kept or held 'by, with or for an agency'" [see Encore College Bookstores,
Inc. v. Auxiliary Services Corporation of the State University of New York at Farmingdale, 87
NY 2d 410. 417 (1995)].

In short, insofar as the records sought are maintained for the City, I believe that the City
would be required to direct the custodian of the records to disclose them in accordance with the
Freedom of Information Law, or obtain them in order to disclose them to you to the extent
required by law.

Second, 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 view, none of the grounds for denial could properly be asserted to withhold the records in
question.

Although one of the grounds for denial may frequently be cited to withhold records or
portions of records characterized as "draft" or "preliminary", for example, that provision would
not be applicable in the situation that you described. Specifically, §87(2)(g) deals with "inter-
agency and intra-agency materials." Section 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."

Based on the foregoing, the exception pertains to communications between or among state or
local government officials at two or more agencies ("inter-agency materials"), or
communications between or among officials at one agency ("intra-agency materials"). If the
records sought consist of communications sent to the City or its attorney or exchanged between
IKEA, the developer or their consultant and City or its attorney, they would not constitute inter-
agency or intra-agency materials, and the exception to which reference was made, in my view,
would not apply. In short, neither IKEA nor its consultant would be an agency, and their
communications with City or its attorney would be neither inter-agency nor intra-agency
materials.

Lastly, the transmittal or possession of records by the City's special counsel would not
alter the character of the records or bring them within the scope of the attorney-client privilege.
By way of background, the first ground for denial in the the Freedom of Information Law,
§87(2)(a), pertains to records that are "specifically exempted from disclosure by state or federal
statute." For more than a century, the courts have found that legal advice given by a municipal
attorney to his or her clients, municipal officials, is privileged when it is prepared in conjunction
with an attorney-client relationship [see e.g., People ex rel. Updyke v. Gilon, 9 NYS 243, 244
(1889); Pennock v. Lane, 231 NYS 2d 897, 898, (1962); Bernkrant v. City Rent and
Rehabilitation Administration, 242 NYS 2d 752 (1963), aff'd 17 App. Div. 2d 392]. As such, I
believe that a municipal attorney may engage in a privileged relationship with his client and that
records prepared in conjunction with an attorney-client relationship may be considered privileged
under §4503 of the Civil Practice Law and Rules. Further, since the enactment of the Freedom
of Information Law, it has been found that records may be withheld when the privilege can
appropriately be asserted when the attorney-client privilege is read in conjunction with §87(2)(a)
of the Law [see e.g., Mid-Boro Medical Group v. New York City Department of Finance, Sup.
Ct., Bronx Cty., NYLJ, December 7, 1979; Steele v. NYS Department of Health, 464 NY 2d 925
(1983)]. Similarly, the work product of an attorney may be confidential under §3101 of the Civil
Practice Law and Rules.

Nevertheless, the records in question, although in possession of the City's special
counsel, do not consist of privileged communications. 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 City of New Rochelle is the client of the special counsel; neither IKEA nor a
developer or their consultant would be his client. Consequently, communications in possession
of the special counsel that were prepared or transmitted by the IKEA, the developer or their
consultant would not fall within the coverage of the attorney-client privilege. On the contrary,
for reasons discussed earlier, I believe that they would constitute agency records that must be
disclosed, for none of the grounds for denial would appear to be pertinent or applicable.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Dorothy Allen
Mark Stellato
Michael Zarin