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FOIL-AO-13729

November 27, 2002

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 appreciate having received your determination of an appeal rendered under the Freedom of
Information Law relating to a request by Mr. Jay Gusler.

You sustained an initial denial of access to a retainer agreement between the City of Long
Beach and the law firm of Rains & Pogrebin based on the belief that the City "has a proprietary
interest in the contents of the agreement which would be severely undermined jeopardizing future
agreements and negotiations with outside counsel firms if retainers were permitted to be publicly
circulated." You added that since the applicant is "an adversary in proceedings" with that firm, you
"believe that there are additional grounds upon which to deny your application."

From my perspective, the retainer agreement is clearly accessible under the Freedom of
Information Law. In this regard, I offer the following comments.

First, as a 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 section 87(2)(a) through (i)
of the Law.

Second, in my opinion, bills, vouchers, contracts, receipts and similar records reflective of
payments made or expenses incurred by an agency or payments made to an agency's staff or agents
are generally available, for none of the grounds for denial would be applicable in most instances.
With specific respect to payments to attorneys, I point out that, while the communications between
an attorney and client are often privileged, it has been established in case law unrelated to the
Freedom of Information Law that records indicating the monies paid and received by an attorney or
a law firm for services rendered to a client are not privileged [see e.g., People v. Cook, 372 NYS 2d
10 (1975)].

In the first case pertaining to records of payments by a municipality to an attorney sought
under the Freedom of Information Law, Knapp v. Board of Education, Canisteo Central School
District (Supreme Court, Steuben County, November 23, 1990), the matter involved an applicant
who sought billing statements for legal services provided to the Board by a law firm. Since the
statements made available included "only the time period covered and the total amount owed for
services and disbursements", petitioner contended that "she is entitled to that billing information
which would detail the fee, the type of matter for which the legal services were rendered and the
names of the parties to any current litigation". In its discussion of the issue, citing a decision
rendered by the state's highest court, it was found that:

"The difficulty of defining the limits of the attorney client privilege
has been recognized by the New York State Court of Appeals.
(Matter of Priest v. Hennessy, 51 NY2d 62, 68.) Nevertheless, the
Court has ruled that this privilege is not limitless and generally does
not extend to the fee arrangements between an attorney and client.
(Matter of Priest v. Hennessy, supra.) As a communication regarding
a fee has no direct relevance to the legal advice actually given, the fee
arrangement is not privileged. (Matter of Priest v. Hennessy, supra.
at 69.)

"There appear to be no New York cases which specifically address
how much of a fee arrangement must be revealed beyond the name of
the client, the amount billed and the terms of the agreement.
However, the United States Court of Appeals, in interpreting federal
law, has found that questions pertaining to the date and general nature
of legal services performed were not violative of client
confidentiality. (Cotton v. United States, 306 F.2d 633.) In that
Court's analysis such information did not involve the substance of the
matters was not privileged..." (emphasis added).

Also pertinent is Orange County Publications, Inc. v. County of Orange [637 NYS 2d 596
(1995)], which 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, and also cited Priest v. Hennessey,
supra.

In the decisions cited above, there was no issue regarding the retainer agreements between
government agencies and law firms, for they are clearly not privileged and accessible by law; rather
the controversy involved more detailed billing records, records that have not been sought by Mr.
Gusler.

With respect to a claim that the City has a "proprietary interest" in the terms of the
agreement, I do not believe that any of the grounds for denial of access appearing in 87(2) would
recognize or authorize such a claim. While 87(2)(d) is often cited as means of withholding what
might be characterized as "proprietary information", that provision pertains to records which if
disclosed would "cause substantial injury to the competitive position" of a "commercial enterprise."
The City of Long Beach could not, in my opinion, be considered a commercial enterprise, and that
provision would be inapplicable.

Moreover, I believe that disclosure works to the benefit of the City and its taxpayers. When
an agreement relating to the purchase of goods or services is about to expire, disclosure of the terms
of the existing agreement provide an opportunity to potential bidders or those who may contract with
the City to offer a better deal. Disclosure is central to the bidding and contracting process, and the
release of contracts and agreements under the Freedom of Information Law similar to that sought in
this instance has saved taxpayers across the state immense amounts of money.

Lastly, the intended use of the agreement and the fact that the applicant may be in litigation
with Rains & Pogrebin is, according to the state's highest court, irrelevant. When records are
accessible under the Freedom of Information Law, it has been held that they should be made equally
available to any person, regardless of one's status, interest or the intended use of the records [see
Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. As the Court
of Appeals has held:

"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 government 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" [Farbman v. New York City Health and
Hospitals Corporation, 62 NY 2d 75, 80 (1984)].

Farbman pertained to a situation in which a person involved in litigation against an agency requested
records from that agency under the Freedom of Information Law. In brief, it was found that one's
status as a litigant had no effect upon that person's right as a member of the public when using the
Freedom of Information Law, irrespective of the intended use of the records. In short, unless there
is a basis for withholding records in accordance with the grounds for denial appearing in 87(2), the
intended use of the records and the status of the applicant are, in my view, irrelevant.

I hope that the foregoing serves to clarify your understanding of the Freedom of Information
Law and that you will reconsider your determination.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Jay Gusler