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FOIL-AO-16382

January 2, 2007

E-MAIL

TO:

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.

Dear

As you are aware, I have received your letter. Please accept my apologies for the delay in response.

You indicated that you serve as president of the Oswego City School District Board of Education and that a member of the Board sent an email message to the Board attorney seeking advice “on how to bring an issue before the board that she said was to do with [your] conduct on sending e-mail to an Ass’t Superintendent.” Your request for a copy of that email was denied, and you have asked whether the denial of access was proper.

In this regard, I offer the following comments.

First, the Freedom of Information Law includes within its coverage all records of an agency, such as a school district. Section 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, I believe that email maintained by or for the District would constitute a District record that falls within the scope of the Freedom of Information Law.

Second, from my perspective, the Freedom of Information Law is intended to enable the public to request and obtain accessible records. Further, it has been held that accessible records should be made equally available to any person, without regard to status or interest [see e.g., Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976) and M. Farbman & Sons v. New York City, 62 NY 2d 75 (1984)]. Nevertheless, if it is clear that records are requested in the performance of one's official duties, the request might not be viewed as having been made under the Freedom of Information Law. In such a situation, if a request is reasonable, and in the absence of a rule or policy to the contrary, I believe that a member of a board should not generally be required to resort to the Freedom of Information Law in order to seek or obtain records.

However, viewing the matter from a more technical perspective, one of the functions of a public body involves acting collectively, as an entity. A board of education, as the governing body of a public corporation, generally acts by means of motions carried by an affirmative vote of a majority of its total membership (see General Construction Law, §41. In my view, in most instances, a Board member acting unilaterally, without the consent or approval of a majority of the total membership of the Board, has the same rights as those accorded to a member of the public, unless there is some right conferred upon a Board member by means of law or rule. In the absence of any such rule, a member seeking records could presumably be treated in the same manner as the public generally.

Third, 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 §87(2)(a) through (j) of the Law. In my view, two of the exceptions are pertinent in considering rights of access.

The initial ground for denial, §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 the school district attorney may engage in a privileged relationship with his/her 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)].

I question, however, who or what the client may be in the context of your question. In my view, the client is likely the District’s governing body, the Board of Education. Unless directed or authorized by a majority of the Board to seek legal advice from the Board’s attorney, I do not believe that a single Board member, acting on his or her own initiative, may be viewed as the client or, therefore, that communications between that Board member and the District’s attorney would fall within or be exempted from disclosure based on the assertion of the attorney-client privilege.

The other exception pertains to communications between or among government officers or employees. Specifically, §87(2)(g) authorizes 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. In my opinion, a communication between a Board member and the District’s attorney would consist of “intra-agency material” that is accessible or deniable, in whole or in part, based on the content of the communication.

Lastly, it is suggested that you might raise the issue before the Board to seek clarification and certainty in order to establish the identity of the client for the purpose of asserting the attorney-client privilege. In addition, you or any Board member could introduce a motion or resolution to authorize disclosure of this or other email communications to you. If the motion is carried by a majority vote of the Board’s membership, the record must be made available to you, even if it could be withheld from the general public under the Freedom of Information Law. I note, too, that the Freedom of Information Law is permissive; even though an agency may withhold records from the public in accordance with the grounds for denial of access appearing in §87(2), it is not ordinarily required to do so [see Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)]. The only instance in which an agency must withhold records would involve a situation in which a statute forbids disclosure.

I hope that I have been of assistance.

RJF:tt