December 18, 2006
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.
I have received your letter concerning a request for records of the Brighton School District relating to requests for transcripts pertaining to you made by attorneys or others. Because you received no response to your initial request, you appealed to the then Superintendent, who wrote that “communications with our school attorney are privileged communications and not subject to the freedom of information law requests.” You questioned the accuracy of that response and suggested that it did not deal with communications involving person’s other than the District’s attorney.
In this regard, I offer the following comments.
First, the Freedom of Information Law pertains to all records of an agency, such as a school district, for §86(4) defines the term “record” 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."
Based on the foregoing, any documentation maintained by or for the District falling within the scope of your request would constitute a record that falls within the coverage of the Freedom of Information Law.
Second, that statute 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 (j) of the Law. From my perspective, three of the grounds for denial are pertinent in considering rights of access.
First, §87(2)(b) authorizes an agency to deny access to records insofar as disclosure would result in “an unwarranted invasion of personal privacy.” You could not invade your own privacy. With respect to the privacy of others, i.e., government officers or employees, representatives of educational institutions or others acting a business or professional capacity, requests for a transcript or other communications would not, in my view, involve personal information. As stated by the Court of Appeals, the state’s highest court, the exception in the Freedom of Information Law pertaining to the protection of personal privacy involves details about one's life "that would ordinarily and reasonably be regarded as intimate, private information" [Hanig v. State Department of Motor Vehicles, 79 NY2d 106, 112 (1992)].
Second, if, for instance, a notation or similar entry is made by the District when a transcript is requested or disclosed, that kind of record would fall within §87(2)(g). 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. I believe that the kind of entry described earlier would constitute factual information available under subparagraph (i) of §87(2)(g).
Lastly, the statement offered by the former superintendent regarding the attorney-client privilege is, in my opinion, far broader than the law indicates. By way of background, §87(2)(a) pertains to records 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)].
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, when 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.
Unless a record falling within the scope of your request involves a request for legal advice by a District official, or the rendition of legal advice given by the District’s attorney to a District official, I do not believe it would be subject to the attorney-client privilege. Stated differently, a notation or entry indicating that a transcript has been requested by or disclosed to the District’s attorney would not, by itself, in my opinion, constitute a privileged communication.
I hope that I have been of assistance.
Robert J. Freeman
cc: Christopher B. Manaseri