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April 25, 2001

FOIL-AO-12641

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 23 and the materials attached to it. You have sought an
advisory opinion concerning your efforts in obtaining records from the Town of Glenville.

Your first question is whether the Town may "withhold entire records because they fall under
the category of inter or intra-agency records or are town officials required to review the records to
determine if any of the information contained in the record falls under 87.2(g)(i), (ii), (iii) or (iv)?"

In this regard, 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, the state's highest court, reiterated its general view of the intent of the
Freedom of Information Law most recently in Gould v. New York City Police Department, 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)" [89 NY2d 267, 275 (1996)].

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. In that case,
the Police Department contended that complaint follow up reports could be withheld in their entirety
on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g). The
Court, however, wrote that: "Petitioners contend that because the complaint follow-up reports
contain factual data, the exemption does not justify complete nondisclosure of the reports. We
agree" (id., 276), and stated as a general principle that "blanket exemptions for particular types of
documents are inimical to FOIL's policy of open government" (id., 275). The Court also offered
guidance to agencies and lower courts in determining rights of access and referred to several
decisions it had previously rendered, stating that:

"...to invoke one of the exemptions of section 87(2), the agency must
articulate 'particularized and specific justification' for not disclosing
requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d,
at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). If the court is unable to
determine whether withheld documents fall entirely within the scope
of the asserted exemption, it should conduct an in camera inspection
of representative documents and order disclosure of all nonexempt,
appropriately redacted material (see, Matter of Xerox Corp. v. Town
of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74;
Matter of Farbman & Sons v. New York City Health & Hosps. Corp.,
supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

While §87(2)(g) potentially serves as one of the grounds for denial of access to records, due
to its structure, it often requires substantial disclosure. The cited 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 same kind of analysis would apply with respect to records prepared by consultants for
agencies, for the Court of Appeals has held that:

"Opinions and recommendations prepared by agency personnel may
be exempt from disclosure under FOIL as 'predecisional materials,
prepared to assist an agency decision maker***in arriving at his
decision' (McAulay v. Board of Educ., 61 AD 2d 1048, aff'd 48 NY
2d 659). Such material is exempt 'to protect the deliberative process
of government by ensuring that persons in an advisory role would be
able to express their opinions freely to agency decision makers
(Matter of Sea Crest Const. Corp. v. Stubing, 82 AD 2d 546, 549).

"In connection with their deliberative process, agencies may at times
require opinions and recommendations from outside consultants. It
would make little sense to protect the deliberative process when such
reports are prepared by agency employees yet deny this protection
when reports are prepared for the same purpose by outside
consultants retained by agencies. Accordingly, we hold that records
may be considered 'intra-agency material' even though prepared by an
outside consultant at the behest of an agency as part of the agency's
deliberative process (see, Matter of Sea Crest Constr. Corp. v.
Stubing, 82 AD 2d 546, 549, supra; Matter of 124 Ferry St. Realty
Corp. v. Hennessy, 82 AD 2d 981, 983)" [Xerox Corporation v. Town
of Webster, 65 NY 2d 131, 132-133 (1985)].

Based upon the foregoing, records prepared by a consultant for an agency may be withheld
or must be disclosed based upon the same standards as in cases in which records are prepared by the
staff of an agency. It is emphasized that the Court in Xerox specified that the contents of intra-
agency materials determine the extent to which they may be available or withheld, for it was held
that:

"While the reports in principle may be exempt from disclosure, on
this record - which contains only the barest description of them - we
cannot determine whether the documents in fact fall wholly within the
scope of FOIL's exemption for 'intra-agency materials,' as claimed by
respondents. To the extent the reports contain 'statistical or factual
tabulations or data' (Public Officers Law section 87[2][g][i], or other
material subject to production, they should be redacted and made
available to the appellant" (id. at 133).

Therefore, a record prepared by a consultant for an agency would be accessible or deniable, in whole
or in part, depending on its contents.

I note that in Gould, supra, one of the contentions was that certain reports could be withheld
because they were not final and because they related to incidents for which no final determination
had been made. The Court rejected that finding and stated that:

"...we note that one court has suggested that complaint follow-up
reports are exempt from disclosure because they constitute nonfinal
intra-agency material, irrespective of whether the information
contained in the reports is 'factual data' (see, Matter of Scott v. Chief
Medical Examiner, 179 AD2d 443, 444, supra [citing Public Officers
Law §87[2][g][111]). However, under a plain reading of §87(2)(g),
the exemption for intra-agency material does not apply as long as the
material falls within any one of the provision's four enumerated
exceptions. Thus, intra-agency documents that contain 'statistical or
factual tabulations or data' are subject to FOIL disclosure, whether or
not embodied in a final agency policy or determination (see, Matter
of Farbman & Sons v. New York City Health & Hosp. Corp., 62
NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d 577)..."
[Gould et al. v. New York City Police Department, 87 NY2d 267,
276 (1996)].

In short, that the records are "draft" or "non-final" would not represent an end of an analysis
of rights of access or an agency's obligation to review the entirety of their contents to determine
rights of access.

Second, many of the records sought were prepared by "advisory commissions" created by
the Town, and the question is whether those entities constitute "agencies" as defined by the Freedom
of Information Law. Each of the commissions in question has only the authority to advise; none has
the authority to take final and binding action. In my view, if the commissions were created by
resolution, it is likely that they are not agencies. On the other hand, if a commission was created by
local law, for example, and performs a necessary function in the decision-making process, I believe
that it would be subject to the Open Meetings Law and that it would constitute an "agency" subject
to the Freedom of Information Law. On occasion, a regulation promulgated by a state agency or a
local law creates an advisory body whose advice or opinion must be sought before the decision-
maker or decision-making body may act. In that situation, because the advisory body performs a
necessary and integral function in the decision-making process, I believe that it would be a "public
body" for purposes of the Open Meetings Law and an "agency" for purposes of the Freedom of
Information Law.

If those factors are not present, I point out that several judicial decisions indicate generally
that advisory entities, other than committees consisting solely of members of public bodies, having
no power to take final action fall outside the scope of the Open Meetings Law. As stated in those
decisions: "it has long been held that the mere giving of advice, even about governmental matters
is not itself a governmental function" [Goodson-Todman Enterprises, Ltd. v. Town Board of Milan,
542 NYS 2d 373, 374, 151 AD 2d 642 (1989); Poughkeepsie Newspapers v. Mayor's
Intergovernmental Task Force, 145 AD 2d 65, 67 (1989); see also New York Public Interest
Research Group v. Governor's Advisory Commission, 507 NYS 2d 798, aff'd with no opinion, 135
AD 2d 1149, motion for leave to appeal denied, 71 NY 2d 964 (1988)].

Relevant to the foregoing is §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 definition, an "agency" is a governmental entity performing a governmental function,
such as the Town of Glenville. If the commissions are not public bodies for purposes of the Open
Meetings Law because they do not perform a governmental function, for the same reason, they would
not be agencies for purposes of the Freedom of Information Law.

If a commission is not an agency, the exception regarding inter-agency and intra-agency
materials would in my view apply to materials that it prepares.

I note that Xerox, supra, dealt with reports prepared "by outside consultants retained by
agencies" (id. 133). In such cases, it was found that the records prepared by consultants should be
treated as if they were prepared by agency staff and should, therefore, be considered intra-agency
materials. However, based on the information provided, a commission could not, in my view, be
characterized as a consultant. As the term "consultant" is ordinarily used and according to an
ordinary dictionary definition of that term, a consultant is an expert or a person or firm providing
professional advice or services. As I understand the composition of the commissions, while they
may consist of well-respected members of the community who may enjoy expertise in a variety of
areas, their members are not in the business of preparing recommendations on the operation of
municipal government for gain or livelihood. Further, in the context of the Xerox decision, I believe
that a consultant would be person or firm "retained" for compensation by an agency to provide a
service. It is my understanding that the commissions serve voluntarily and without compensation.
For the foregoing reasons, I do not believe that the records prepared by the commissions could be
viewed as a consultant's report or would fall within the scope of §87(2)(g) of the Freedom of
Information Law, unless a commission is an "agency" because it performs a necessary function in
the decision-making process.

Third, you asked whether "records such as retainer agreements, communications and other
records between town board members, employees, and the legal consultants be withheld in their
entirety based on attorney client privilege or attorney work product?"

Here I direct your attention to §87(2)(a), which pertains to records that "are specifically
exempted from disclosure by state or federal statute." One such statute, §4503 of the Civil Practice
Law and Rules (CPLR), serves as a codification of the attorney-client privilege. From my
perspective, when a municipal official or body seeks legal advice from its attorney and the attorney
renders legal advice, communications of that nature would fall within the coverage of the attorney-
client privilege and would, therefore, be exempt from disclosure under §87(2)(a) of the Freedom of
Information Law.

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)].

In my view, a retainer agreement, a contract, would not be subject to the attorney-client
privilege and would ordinarily be accessible [see Orange County Publications, Inc. v. County of
Orange, 637 NYS2d 596 (1995)].

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Town Board
Robert A. Moore