March 30, 2007
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.
I have received your letter in which you raised issues relating to the Depew Board of Education, upon which you serve as a member. You referred to a situation in which “the Board met in Executive Session...to discuss legal issues and access to the legal bills [you] had in question.” You added that:
“At that time, the entire Board took a vote and agreed to keep an ongoing file in the District Clerk’s office of legal bills that a board member could view at any time. At our next regular meeting, on February 6, in Executive Session, the Board President, Susan Wagner, presented all of the board members with the attached Confidentiality Agreement that she wanted us to sign before we could view the legal bills. Myself and 3 of the 7 member board refused to sign the agreement.”
The proposed “Confidentiality Agreement for Review of Un-Redacted Legal Bills by Board of Education Members” states as follows:
“1. Members in their individual capacities are entitled to review the bills for professional services rendered by the school attorney to the District under the New York State Freedom of Information Law in a redacted form; and
2. The District seeks to allow Members access to these bills in an un-redacted form and without having to file the required Freedom of Information Request with the District; and
3. These bills will be maintained in a binder with the District Clerk and the Member’s signature seeking review of these bills will be required on a sign-in sheet prior to the Member’s review of these bills; and
4. By signing below the Member agrees in exchange for reviewing said bills in the form described in this Agreement, that all information contained in these bills will remain strictly confidential and only be discussed by Members in an Executive Session of a Board of Education Meeting; and
5. If a Member fails to adhere to the sign-in procedure or the confidentiality requirements of this agreement, said access to the documents described in this agreement will be denied.
6. Any new Member of the Board of Education will be required to sign a copy of this Agreement prior to obtaining access to the bills described herein under the terms described herein.
7. By signing below you accept and agree to adhere to all the requirements set forth in this Agreement.”
From my perspective, the proposed agreement is overbroad and, in some respects, inconsistent with law. In this regard, I offer the following comments.
First and perhaps most importantly, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency, such as a school district, 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. It is emphasized that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow. In my view, the phrase quoted in the preceding sentence evidences a recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld. That being so, I believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.
The Court of Appeals, the state’s highest court, confirmed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department, stating that:
"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[b]). As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" [89 NY2d 267, 275 (1996)].
Most pertinent in my view is the first ground for denial, §87(2)(a), which 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 government attorney to his or her clients, government officials, is privileged when it is prepared or imparted pursuant to an attorney-client relationship [see e.d., 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 school district may engage in a privileged relationship with his or her client and that records prepared in conjunction with such an attorney-client relationship may be considered privileged under §4503 of the CPLR. 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 of the Civil Practice Law and Rules.
One of the difficulties with the proposed agreement is that some elements of the records at issue must, based on judicial precedent, be made available to any person pursuant to the Freedom of Information Law.
In the first decision of which I am aware in which the request involved records sought under the Freedom of Information Law concerning services rendered by an attorney to a government agency, Knapp v. Board of Education, Canisteo Central School District (Supreme Court, Steuben County, November 23, 1990), the matter pertained to a request for billing statements for legal services provided to a board of education by a law firm. Since the statements made available included "only the time period covered and the total amount owed for services and disbursements", the applicant 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, the court 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.)...
"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 being communicated and, consequently, was not privileged...
"...Respondents have not justified their refusal to obliterate any and all information which would reveal the date, general nature of service rendered and time spent. While the Court can understand that in a few limited instances the substance of a legal communication might be revealed in a billing statement, Respondents have failed to come forward with proof that such information is contained in each and every document so as to justify a blanket denial of disclosure. Conclusory characterizations are insufficient to support a claim of privilege. (Church of Scientology v. State of New York, 46 NY 2d 906, 908.)”
In short, in Knapp, even though portions of the records containing the time billed and the amount paid for the time, it was determined that other aspects of billing statements indicating “the general nature of legal services performed”, as well as certain others, did not fall within the attorney client privilege and were available.
In the other decision dealing with the issue under the Freedom of Information Law, Orange County Publications, Inc. v. County of Orange [637 NYS 2d 596 (1995)], the matter 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). While 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.).
Although the County argued that the “description material” is specifically exempted from disclosure by statute in conjunction with §87(2)(a) of the Freedom of Information Law and the assertion of the attorney-client privilege pursuant to §4503 of the CPLR, the court found that the mere communication between the law firm and the County as its client does not necessarily involve a privileged communication; rather, the court stressed that it is the content of the communications that determines the extent to which the privilege applies. Further, the court distinguished between actual communications between attorney and client and descriptions of the legal services provided, stating that:
"Thus, respondent’s position can be sustained only if such descriptions rise to the level of protected communications...
"Consequently, while billing statements which 'are detailed in showing services, conversations, and conferences between counsel and others' are protected by the attorney-client privilege (Licensing Corporation of America v. National Hockey League Players Association, 153 Misc.2d 126, 127-128, 580 N.Y.S.2d 128 [Sup. Ct. N.Y.Co. 1992]; see, De La Roche v. De La Roche, 209 A.D.2d 157, 158-159 [1st Dept. 1994]), no such privilege attaches to fee statements which do not provide 'detailed accounts' of the legal services provided by counsel..." (id., 602).
In my opinion, the key word in the foregoing is “detailed.” Certainly I would agree that a description of litigation strategy, for example, would fall within the scope of the attorney client privilege; clearly the Freedom of Information Law does not serve as a vehicle for enabling the public, which includes an adversary or potential adversary in litigation, to know the thought processes of an attorney providing legal services to his or her client. Similarly, because the Family Educational Rights and Privacy Act (20 USC §1232g) prohibits the disclosure of information personally identifiable to students, I believe that references identifiable to students may properly be deleted. However, as suggested in both Knapp and Orange County Publications, “descriptive” material reflective of the “general nature of services rendered”, as well as the dates, times and duration of services rendered ordinarily would be beyond the coverage of the privileged.
Section 4 of the proposed agreement states that, by signing, a member of the Board, in exchange for having the opportunity to inspect the bills in their entirety, promises to keep “all information contained in these bills...strictly confidential” and that they may only be discussed by Board members during an executive session. Similarly, section 5 states that a failure to abide by the “sign-in procedure” would eliminate any access to the records. For the reasons described above, I believe that those provisions are contrary to law. 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)]. The proposed agreement would eliminate the rights of Board members as members of the public. Some portions of the bills are accessible to anyone under the Freedom of Information Law, including Board members, irrespective of whether they sign the agreement. I do not believe the agreement could validly restrict or diminish rights of access conferred upon members of the public who happen to be members of a board of education. Further and equally important, while there may be a basis for entry into executive session to discuss some bills or certain aspects of them, there would likely be no basis for entry into executive session in consideration of others.
In my opinion, the agreement would be valid insofar as the bills include information that is indeed confidential by statute based on the proper assertion of the attorney-client privilege or perhaps a different statute that forbids disclosure, such as the Family Educational Rights and Privacy Act. Other aspects of the records likely would not be exempted from disclosure by statute or, therefore, be confidential. I note that if a member of the Board obtains information subject to the attorney-client privilege, that person, acting unilaterally, would not have the authority to waive the privilege on behalf of the Board; only a majority of the Board would have the authority to do so..
Lastly, there are issues relating to the Open Meetings Law that merit comment, and your description of the manner in which the proposed agreement was developed suggests a failure to comply with both that law and the Education Law. According to your letter, the Board conducted an executive session to discuss access to the legal bills and “took a vote and agreed to keep ongoing file in the District Clerk’s office of legal bills that a board member could review at any time.” I do not believe that the Board could have properly discussed that procedure or policy during an executive session.
Like the Freedom of Information Law, the Open Meetings Law is based on a presumption of openness. Meetings must be conducted in public, except to the extent that an executive session may properly be convened in accordance with §105(1). Paragraphs (a) through (h) of that provision specify and limit the subjects that may properly be discussed in executive session. In my view, consideration of an adoption of policy concerning Board members’ access to legal bills would not fall within any of the grounds for entry into executive session, and that issue should have been discussed in public.
Moreover, judicial decisions indicate that the Board could not have voted in private to adopt the policy. Although §106(2) of the Open Meetings Law refers to minutes of executive session when action is taken, only in rare instances may a board of education take action during an executive session. As a general rule, a public body may take action during a properly convened executive session [see Open Meetings Law, §105(1)]. In the case of most public bodies, if action is taken during an executive session, minutes reflective of the action, the date and the vote must be recorded in minutes pursuant to §106(2) of the Law. If no action is taken, there is no requirement that minutes of the executive session be prepared. Various interpretations of the Education Law, §1708(3), however, indicate that, except in situations in which action during a closed session is permitted or required by statute, a school board cannot take action during an executive session [see United Teachers of Northport v. Northport Union Free School District, 50 AD 2d 897 (1975); Kursch et al. v. Board of Education, Union Free School District #1, Town of North Hempstead, Nassau County, 7 AD 2d 922 (1959); Sanna v. Lindenhurst, 107 Misc. 2d 267, modified 85 AD 2d 157, aff'd 58 NY 2d 626 (1982)]. Stated differently, based upon judicial interpretations of the Education Law, a school board generally cannot vote during an executive session, except in those unusual circumstances in which a statute permits or requires such a vote.
Those circumstances would arise, for example, when a board initiates charges against a tenured person pursuant to §3020-a of the Education Law, which requires that a vote to do so be taken during an executive session. The other instance would involve a situation in which action in public could identify a student. When information derived from a record that is personally identifiable to a student, the federal Family Educational Rights and Privacy Act (20 USC §1232g) would prohibit disclosure absent consent by a parent of the student.
I hope that I have been of assistance.
cc: Board of Education