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FOIL-AO-14565

March 15, 2004

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 February 20 and the materials attached to it.

You have sought an advisory opinion concerning the propriety of a denial of access to a "report of the investigation" of the Olean School District’s Superintendent prepared by a law firm retained by the District. You wrote that the Board of Education "spent about $50,000 on the investigation" and that, following a review of the report, the Superintendent’s contract was terminated. The termination agreement between the Superintendent and the District authorizes him to remain as a consultant until June, 2005 and receive "about $197,000 in salary and benefits."

The records access officer for the District wrote that the record in question:

"...is not available for release because no such report was filed with the District. Rather, the results of the inquiry by the District’s attorneys were delivered to the Board during an oral, executive session briefing. The materials on which the briefing was based constitute both privileged attorney work product and information that would, if disclosed, result in an unwarranted invasion of personal privacy and impair both present and imminent collective negotiations."

In this regard, while I am not aware of the specific content of the report, I offer the following comments.

First, that the report was "not filed with the District" does not in my view constitute a justification for a denial of access. The Freedom of Information Law is applicable to all agency records, and§86(4) 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 consideration of 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, for example, 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).

Perhaps most significant is a decision rendered by the Court of Appeals in which it was found that materials maintained by a corporation providing services pursuant to a contract 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, I believe that the report constitutes a District record subject to rights conferred by the Freedom of Information Law, irrespective of its physical location.

Second, with respect to the contention that the report consists of attorney work product that is exempt from disclosure, the issue in my opinion involves whether or the extent to which the report represents material that could only be the product of an attorney that is reflective of legal expertise.

By way of general background, 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." Section 3101(c) of the Civil Practice Law and Rules (CPLR) authorizes confidentiality regarding the work product of an attorney.

Since it serves as a barrier to disclosure, it is emphasized that the courts have narrowly construed the exemption concerning attorney work product. It has been held that only the work product that involves the learning and professional skills possessed only by an attorney is exempt from disclosure [see Soper v. Wilkinson Match, 176 Ad2d 1025 (1991); Hoffman v. Ro-San Manor, 73 AD2d 207 (1980)]. Insofar as the contents of the report do not reflect the specialized skill that can be offered only by an attorney, I do not believe that the report can be withheld based on a contention that it consists of attorney work product.

Further, §3101(c) is intended to shield from an adversary, typically in a litigation context, records that would result in a strategic advantage, as the case may be. Reliance on that provision in the context of a request made under the Freedom of Information Law is in my view dependent in part upon a finding that a record has not been disclosed, particularly to an adversary. It is unclear whether the report may have been disclosed to the Superintendent. If that occurred, I do not believe §3101(c) would serve as a basis for a denial of access.

It is possible or perhaps likely that some aspects of the report involve expertise or service that only an attorney could render. To that extent, I believe that a denial of access would be proper. To the extent that it does not consist of a product that could only be prepared by an attorney, I believe that the remaining provisions of the Freedom of Information Law would determine rights of access.

To the extent that is so, and in consideration of the remaining reasons for denial offered by the District, §87(2)(b) of the Freedom of Information Law authorizes an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." Although the standard concerning privacy is flexible and may be subject to conflicting interpretations, the courts have provided substantial direction regarding the privacy of public employees. It is clear that public employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that public employees are required to be more accountable than others. Further, the courts have found that, as a general rule, records that are relevant to the performance of a public employee's official duties are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d 562 (1986)]. Conversely, to the extent that records are irrelevant to the performance of one's official duties, it has been found that disclosure would indeed constitute an unwarranted invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov. 22, 1977].

Next, §87(2)(c) permits an agency to deny access to records insofar as disclosure "would impair present or imminent contract awards or collective bargaining negotiations." Based on the information provided, it is difficult to envision how a report pertaining to a superintendent would be pertinent to collective bargaining negotiations with a public employee union. For that reason, it does not appear that §87(2)(c) would serve as a basis for a denial of access.

Lastly, in any instance in which records sought pursuant to the Freedom of Information Law are withheld, the applicant for the records has the right to appeal the denial in accordance with §89(4)(a). Further, the regulations promulgated by the Committee on Open Government, which have the force and effect of law, specify that an agency must inform the applicant of the right to appeal [see 21 NYCRR §1401.7; also Barrett v. Morgenthau, 144 AD2d 1040, 74 NY2d 907 (1990)]. The District’s records access officer failed to do so in his response to you.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Robert Olczak
Joseph Mahar