August 8, 2006
FROM: Robert J. Freeman, Executive Director
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
As you are aware, I have received your letter in which you referred to an opinion provided by the Greenburgh Town Attorney to the Town Board concerning the implications of the acceptance of a certain HUD grant. It is your view that the opinion should be made public, for you believe that disclosure would not "compromise the town in any way." You also indicated the memo includes an admonition indicating that its dissemination or disclosure by persons other than Board members is "strictly prohibited and any violation or breach of this confidentiality will subject the violator to criminal and civil sanctions and penalties."
In this regard, as you are aware, the Freedom of Information Law pertains to all government records and 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 noted that the Freedom of Information Law is permissive; even when records may be withheld in accordance with one or more of the grounds for denial of access, there is no obligation to withhold the records [see Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)]. The only instances in which that is not so involves those cases in which a statute, either an act of Congress or the State Legislature, specifies that records are confidential.
The first ground for denial, §87(2)(a), pertains to those records, those that are "specifically exempted from disclosure by state or federal statute." For more than a century, the courts have found that legal advice given by a municipal attorney to his or her clients, municipal officials, is privileged when it is prepared in conjunction with an attorney-client relationship [see e.g., People ex rel. Updyke v. Gilon, 9 NYS 243, 244 (1889); Pennock v. Lane, 231 NYS 2d 897, 898, (1962); Bernkrant v. City Rent and Rehabilitation Administration, 242 NYS 2d 752 (1963), aff'd 17 App. Div. 2d 392]. As such, I believe that a municipal attorney may engage in a privileged relationship with his client and that records prepared in conjunction with an attorney-client relationship are considered privileged under §4503 of the Civil Practice Law and Rules. Further, since the enactment of the Freedom of Information Law, it has been found that records may be withheld when the privilege can appropriately be asserted when the attorney-client privilege is read in conjunction with §87(2)(a) of the Law [see e.g., Mid-Boro Medical Group v. New York City Department of Finance, Sup. Ct., Bronx Cty., NYLJ, December 7, 1979; Steele v. NYS Department of Health, 464 NY 2d 925 (1983)]. Similarly, the work product of an attorney may be confidential under §3101(c) of the Civil Practice Law and Rules. In my view, there need not be litigation for there to be an attorney-client relationship or to assert the attorney-client privilege.
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)].
Based on the foregoing, assuming that the privilege has not been intelligently and purposely waived, and that records consist of legal advice or opinion provided by counsel to the client, such records would be confidential pursuant to §4503 of the Civil Practice Law and Rules and, therefore, exempted from disclosure under §87(2)(a) of the Freedom of Information Law.
The client, in the context of your inquiry, in my view is the Town Board. Since you are but one of five members, I do not believe that you, or any other Board member, acting unilaterally, would have the authority to waive the privilege. On the other hand, if a majority of the Board determines to waive the privilege, the attorney’s opinion could be disclosed.
Lastly, with respect to admonition by the Town Attorney, once the privilege is knowingly and intelligently waived, I know of no provision that generally prohibits further dissemination. Further, if, for example, a copy of a record that is exempted from disclosure by statute is obtained by a member of the public, but not by means of any illegality, I believe that person may do with the record as he or she chooses.
I hope that I have been of assistance.