February 22, 2008
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 several issues in relation to your effort in gaining access to records from the City of Rochester. Based on a review of your remarks, I offer the following comments.
First, the Freedom of Information Law pertains to all records of an agency, such as a city, and defines the term “record” in §86(4) to include:
"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, when information exists in some physical form and is maintained by or for the City, I believe that it constitutes a City record subject to rights conferred by the Freedom of Information Law.
Second, 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.
Third, written communications between or among City officials, whether they are made on paper or by means of email, would constitute intra-agency material falling within the scope of §87(2)(g) of the Freedom of Information Law. That provision 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.
With respect to the attorney-client privilege, first 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 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.
Lastly, you referred to your right to appeal a denial of a request beyond the period of thirty days expressed in the Freedom of Information Law as the time within which a denial may be appealed. In this regard, it has been held that a challenge to a denial of a second request for records that had initially been denied in response to a preceding request and appeal must be dismissed on the ground that initiation of the suit was time barred [Garcia v. Division of State Police, 302 AD2d 755 (2003)]. Insofar as your requests involve records that had previously been denied both initially and following an appeal, it is my view that the City is not required to respond, unless there is a change in circumstances that would alter the authority of the City to deny access.
I hope that the foregoing serves to clarify your understanding and that I have been of assistance.
Robert J. Freeman
cc: Thomas S. Richards