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October 25, 2000

FOIL-AO-12354

The staff of the Committee on Open Government is authorized to issue advisory opinions.
The ensuing staff advisory opinion is based solely upon the facts presented in your
correspondence.

Dear

I have received your letter of September 1, as well as the materials attached to it.
Please accept my apologies for the delay in response.

By way of background, you wrote that the Board of Trustees of the Village of Seneca
Falls on May 18 terminated the employment of the Village's Administrator/Clerk. Soon
after, the contents of that person's computer were downloaded, removed and in the
possession of a trustee. Although you, the Interim Clerk and the Chief of Police sought to
regain custody of the computer tapes that were taken in order that you may carry out your
duties effectively, the tapes had not been returned to the Village Hall as of the date of your
letter to this office. You added that you and others were denied access to all other records in
the Clerk's office for a period of six weeks after the termination of the Administrator/Clerk,
which was later found to be invalid. Further, the Village Attorney informed you, in your
words, "that the tapes are in his possession to be kept under his legal custody." He has also
contended that your approval of a request made under the Freedom of Information Law for
invoices of his work performed for the Village was contrary to law, and he has refused to
allow you to review copies of those documents, which are kept at his office in Syracuse. You
enclosed samples of the invoices.

Based on a review of the correspondence attached to your letter, I believe that your
understanding of the law is accurate. Nevertheless, I offer the following comments.

First, irrespective of where the records at issue may be kept, I believe that they fall
within the scope of the Freedom of Information Law. It is emphasized that the Freedom of
Information Law pertains to agency records and that §86(4) of the Law defines the term
"record" expansively to mean: "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."

In a case in which an agency contended, in essence, that it could choose which
documents it considered to be "records" for purposes of the Freedom of Information Law, the
state's highest court rejected that claim. As stated by the Court of Appeals:

"...respondents' construction -- permitting an agency to engage
in a unilateral prescreening of those documents which it deems
to be outside the scope of FOIL -- would be inconsistent with
the process set forth in the statute. In enacting FOIL, the
Legislature devised a detailed system to insure that although
FOIL's scope is broadly defined to include all governmental
records, there is a means by which an agency may properly
withhold from disclosure records found to be exempt (see,
Public Officers Law §87[2]; §89[2],[3]. Thus, FOIL provides
that a request for access may be denied by an agency in writing
pursuant to Public Officers Law §89(3) to prevent an
unwarranted invasion of privacy (see, Public Officers Law
§89[2]) or for one of the other enumerated reasons for
exemption (see, Public Officers Law §87[2]). A party seeking
disclosure may challenge the agency's assertion of an
exemption by appealing within the agency pursuant to Public
Officers Law §89(4)(a). In the event that the denial of access is
upheld on the internal appeal, the statute specifically authorizes
a proceeding to obtain judicial review pursuant to CPLR article
78 (see, Public Officers Law §89[4][b]). Respondents'
construction, if followed, would allow an agency to bypass this
statutory process. An agency could simply remove documents
which, in its opinion, were not within the scope of the FOIL,
thereby obviating the need to articulate a specific exemption
and avoiding review of its action. Thus, respondents'
construction would render much of the statutory exemption and
review procedure ineffective; to adopt this construction would
be contrary to the accepted principle that a statute should be
interpreted so as to give effect to all of its provisions...

"...as a practical matter, the procedure permitting an
unreviewable prescreening of documents -- which respondents
urge us to engraft on the statute -- could be used by an
uncooperative and obdurate public official or agency to block
an entirely legitimate FOIL request. There would be no way to
prevent a custodian of records from removing a public record
from FOIL's reach by simply labeling it 'purely private'. Such
a construction, which could thwart the entire objective of FOIL
by creating an easy means of avoiding compliance, should be
rejected" [Capital Newspapers v. Whalen, 69 NY 2d 246, 253-
254 (1987)].

The records would not come into the possession of a trustee or be prepared by the
attorney, but for their roles in Village government. That being so, it is my opinion that the
records in question are subject to rights conferred by the Freedom of Information Law.

I note that it has been found that records reflective of his compensation 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, but rather were in the
possession of the attorney, 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)].

Second, and in a related vein, the "Local Government Records Law", Article 57-A of
the Arts and Cultural Affairs Law, deals with the management, custody, retention and
disposal of records by local governments. For purposes of those provisions, §57.17(4) of the
Arts and Cultural Affairs Law defines "record" to mean:

"...any book, paper, map, photograph, or other information-
recording device, regardless of physical form or characteristic,
that is made, produced, executed, or received by any local
government or officer thereof pursuant to law or in connection
with the transaction of public business. Record as used herein
shall not be deemed to include library materials, extra copies of
documents created only for convenience of reference, and
stocks of publications."

Further, §57.25 of the Arts and Cultural Affairs Law states in relevant part that:

"1. It shall be the responsibility of every local officer to
maintain records to adequately document the transaction of
public business and the services and programs for which such
officer is responsible; to retain and have custody of such
records for so long as the records are needed for the conduct of
the business of the office; to adequately protect such records; to
cooperate with the local government's records management
officer on programs for the orderly and efficient management
of records including identification and management of inactive
records and identification and preservation of records of
enduring value; to dispose of records in accordance with legal
requirements; and to pass on to his successor records needed
for the continuing conduct of business of the office..."

Third, while others may have physical possession of the records in question, I point
out that §4-402 of the Village Law indicates that the Clerk shall "...have custody of
the...records, and papers of the village." Consistent with that provision is §57.19 of the Arts
and Cultural Affairs Law, which states in part that a village clerk is the "records management
officer" for a v illage.

Third, the failure to share the records or to inform the clerk of their existence may
effectively preclude the clerk from carrying out her duties as records management officer, or
if she or someone else is so designated as records access officer for purposes of responding to
requests under the Freedom of Information Law. In short, if the records access officer does
not know the existence or location of Village records, or cannot obtain them, that person may
not have the ability to grant or deny access to records in a manner consistent with the
requirements of the Freedom of Information Law.

Fourth, with respect to the implementation of the Freedom of Information Law, §89
(1) of the Freedom of Information Law requires the Committee on Open Government to
promulgate regulations concerning the procedural implementation of that statute (21 NYCRR
Part 1401). In turn, §87 (1) requires the governing body of a public corporation to adopt
rules and regulations consistent those promulgated by the Committee and with the Freedom
of Information Law. Further, §1401.2 of the regulations provides in relevant part that:

"(a) The governing body of a public corporation and the head
of an executive agency or governing body of other agencies
shall be responsible for insuring compliance with the
regulations herein, and shall designate one or more persons as
records access officer by name or by specific job title and
business address, who shall have the duty of coordinating
agency response to public requests for access officers shall not
be construed to prohibit officials who have in the past been
authorized to make records or information available to the
public form continuing from doing so."

As such, the Village Board has the duty to promulgate rules and ensure compliance. Section
1401.2 (b) of the regulations describes the duties of a records access officer and states in part
that:

"The records access officer is responsible for assuring that
agency personnel...

(3) upon locating the records, take one of the following
actions:
(i) make records promptly available for inspection; or
(ii) deny access to the records in whole or in part and explain
in writing the reasons therefor.
(4) Upon request for copies of records:
(i) make a copy available upon payment or offer to pay
established fees, if any; or
(ii) permit the requester to copy those records..."

Based on the foregoing, the records access officer must "coordinate" an agency's
response to requests. As part of that coordination, I believe that other Village officials and
employees are required to cooperate with the records access officer in an effort to enable him
or her to carry out his or her official duties.

Lastly, if the copies of the attorney's statements are examples of the invoices or
contain equivalent information, those records, based on judicial decisions, must be disclosed
in great measure, if not in their entirety.

As you are aware, 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 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).

Pertinent with respect to the records in question is a decision, Orange County
Publications v. County of Orange [637 NYS2d 596 (1995)], that involved a request for the
amount of money paid in 1994 to a particular law firm for legal services rendered in
representing the County in a 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" (id., 599). 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'" (id.). 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:

"Thus, 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, 409
N.E.2d 983, 431, N.Y.S.2d 511. 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' Matter of Priest v. Hennessy, supra, 51 N.Y.2d
at 69, 409 N.E.2d 983, 431 N.Y.S.2d 511.

"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, 153 Misc.2d 126, 127-
128, 580 N.Y.S.2d 128 [Sup. Ct. N.Y.Co. 1992]; see, De La
Roche v. De La 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., 602).

It was also contended, as has the Village Attorney, 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:

"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, 188 479
N.Y.S.2d 435 [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 material prepared for litigation, or both" (emphasis
added by the court) (id., 604).

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, 389 N.Y.S.2d 423.
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. See, Ingram v. Axelrod, supra" (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.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Hon. Antonio Constantino, Mayor
Richard Capozza, Village Attorney