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April 25, 2001

FOIL-AO-12638

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 22 in which you sought a "determination" concerning
the propriety of a denial of access to records by the Town of Richmond. The records requested
include:

"1) All correspondence from the Town of Richmond, including the
Town of Richmond Board, Town Supervisor and Code Enforcement
Department generated and sent to Attorney Richard Mayberry or
anyone practicing in his firm regarding Mr. or Mrs. Emmerling, or
property located at 8833 (54) Sandy Bottom Road, Honeoye, NY.

"2) All correspondence from Attorney Richard Mayberry or anyone
practicing in his firm and directed to the Town of Richmond Board,
Town Supervisor and Code Enforcement Department regarding Mr.
or Mrs. Emmerling, or property located at 8833 (54) Sandy Bottom
Road, Honeoye, NY."

In response to the request, the Town's attorney wrote to the Town Clerk and advised that:

"Attorney's work product and trial preparation material are exempt
pursuant to Civil Practice Law & Rules Section 3101(b)(c) and (d),
and Public Officers Law Section 87. In this instance, the attorney-
client privilege and the work product rule cover my correspondence
and reports to my client (Town and staff and responses) and
correspondence/reports compiled by our people at my request and for
my use."

In this regard, it is emphasized that the Committee on Open Government is authorized to
provide advice and opinions concerning the Freedom of Information Law. The Committee is not
empowered to render a binding determination or otherwise compel an agency to grant or deny access
to records. As such, the ensuing comments should be considered advisory in nature.

First, as stated by the state's highest court, the Court of Appeals, in a case involving a request
made under the Freedom of Information Law by a person involved in litigation against an agency:
"Access to records of a government agency under the Freedom of Information Law (FOIL) (Public
Officers Law, Article 6) is not affected by the fact that there is pending or potential litigation
between the person making the request and the agency" [Farbman v. NYC Health and Hospitals
Corporation, 62 NY 2d 75, 78 (1984)]. Similarly, in an earlier decision, the Court of Appeals
determined that "the standing of one who seeks access to records under the Freedom of Information
Law is as a member of the public, and is neither enhanced...nor restricted...because he is also a
litigant or potential litigant" [Matter of John P. v. Whalen, 54 NY 2d 89, 99 (1980)]. The Court in
Farbman, supra, discussed the distinction between the use of the Freedom of Information Law as
opposed to the use of discovery in Article 31 of the Civil Practice Law and Rules (CPLR).
Specifically, it was found that:

"FOIL does not require that the party requesting records make any
showing of need, good faith or legitimate purpose; while its purpose
may be to shed light on governmental decision-making, its ambit is
not confined to records actually used in the decision-making process
(Matter of Westchester Rockland Newspapers v. Kimball, 50 NY 2d
575, 581.) Full disclosure by public agencies is, under FOIL, a public
right and in the public interest, irrespective of the status or need of the
person making the request.

"CPLR article 31 proceeds under a different premise, and serves quite
different concerns. While speaking also of 'full disclosure' article 31
is plainly more restrictive than FOIL. Access to records under CPLR
depends on status and need. With goals of promoting both the
ascertainment of truth at trial and the prompt disposition of actions
(Allen v. Crowell-Collier Pub. Co., 21 NY 2d 403, 407), discovery is
at the outset limited to that which is 'material and necessary in the
prosecution or defense of an action'" [see Farbman, supra, at 80].

Based upon the foregoing, the pendency of litigation would not, in my opinion, affect either
the rights of the public or a litigant under the Freedom of Information Law.

Second, 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.

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, 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)].

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.

In my view, insofar as the records in question have been communicated between the Town
and its adversary or have been filed with a court, any claim of privilege or its equivalent would be
effectively waived. Once records in the nature of attorney work product or material prepared for
litigation are transmitted to an adversary, i.e., from the Town to its adversary and vice versa, I
believe that the capacity to claim exemptions from disclosure under §3101(c) or (d) of the CPLR or,
therefore, §87(2)(a) of the Freedom of Information Law, ends. Conversely, however, if the records
have not been disclosed to a person other than a client or clients, it appears that the assertion of the
privilege would be proper.

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 the foregoing serves to clarify your understanding of the matter and that I have
been of assistance.

Sincerely,

Robert J. Freeman
Executive Director
RJF:jm
cc: Hon. Mary K. Luther
Richard S. Mayberry