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  June 22, 2001

FOIL-AO-12750

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 and the news article attached to it. The article includes reference
to a discussion at a meeting of the Ellicott Town Board during which a member of the Board
recommended that the Town's attorneys should not submit itemized bills. Specifically, the article
indicates that:

"...Taylor said itemized bills could hurt the town in future legal
proceedings because the bills are available under the Freedom of
Information Act. Itemized bills list each time an attorney works on
the town's case. Rather than have town attorneys submit itemized
bill, the board chose to have attorneys submit a general time
statement and make the itemized bill available to the board if there
are questions."

Having served as Mayor of the Village of Celeron for several years, you indicated that you
"have never seen where any future legal proceedings could be harmed because someone found out
that the village attorney had been working on a case or had interviewed witnesses about a case."
You added that you find the kind of secrecy described in the article to be "disturbing", and you have
sought my views on the matter.

In short, I agree that a record indicating the amount of time or the number of times that an
attorney has expended effort in dealing with a particular case or issue would not ordinarily jeopardize
the position of his or her client. Moreover, a review of the Freedom of Information Law enables one
to conclude that an agency has the ability to redact portions of bills that might include, for example,
descriptions of litigation strategy or privileged communications between an attorney and his or
client, which could be harmful to the interests of the agency. The remainder, however, including the
general description of services rendered, must be disclosed in most instances.

More specifically, 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 in a recent decision, 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).

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 agency contended that complaint follow up reports, also known as "DD5's", 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). The Court then 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, directing 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.).

The most expansive decision relating to the issue, Orange County Publications, Inc. v.
County of Orange [637 NYS 2d 596 (1995)], 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 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.

Lastly, if a town attorney maintains possession of itemized bills, those bills might be subject
to the Freedom of Information Law, even if the records are not in the physical custody of the town.
That statute pertains to agency records, and §86(4) 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 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..

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 are maintained for the Town, I believe that the Town 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.

In an effort to enhance their understanding of the Freedom of Information Law, a copy of this
opinion will be forwarded to the Town Board of the Town of Ellicott.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Town Board