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FOIL-AO-17713

                                                                                                July 17, 2009

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, unless otherwise indicated.

Dear

            As you are aware, I have received your letter in which you seek an advisory opinion concerning a request made to the Department of Labor (“the Department”) under the Freedom of Information Law.

            By way of background, the Department received a request for records relating to a “pilot program called ‘Wage Watch’” from the United States Senate Committee on Health, Education, Labor and Pensions (“the Committee”).  In response, access was granted to a variety of records, such as forms, letters, instructions to staff that affect the public, statistical and factual information, and final agency policies or determinations pertaining to Wage Watch.  However, you wrote that the Department withheld records considered to fall within the scope of the attorney-client privilege or which consist of attorney work product, as well as certain portions of inter-agency and intra-agency materials.  In essence, it appears that the Department denied access to those records or portions of records that could justifiably have been withheld from the public in accordance with the exceptions to rights of access appearing in §87(2) of the Freedom of Information Law. 

            Thereafter, staffs of the Department and the Committee engaged in discussions relating to the release of the records that had been withheld, and the Ranking Member of the Committee “agreed to treat these records as part of the confidential business and proceedings of the Committee under Rule XXIX.5 of the Standing Rules of the Senate if [the Department] consented to their release” to the Committee.  Based on that assurance, the Department accepted the agreement in consideration of the fact that the disclosure would be made to the Committee “in the course of their performance of official duties” and “in the spirit of cooperation.”

            The Department has since received a request for the same records pursuant to the Freedom of Information Law from “a non-public entity.”  You have asked whether disclosure of the records to the Committee has eliminated your capacity deny access to records sought by the non-public entity.  In this regard, I offer the following comments.

            First, as you are aware, the Freedom of Information Law deals with requests by and rights of access conferred upon members of the public.  When records are sought under the Freedom of Information Law, it has been held that an applicant does so as a member of the public and that the status or interest of the applicant is irrelevant to rights of access.  Additionally, when records are accessible under the Freedom of Information Law, they are equally available to any person, regardless of one’s status or interest [see M. Farbman & Sons v. New York City Health and Hosps. Corp., 62 NY2d 75 (1984) and Burke v. Yudelson, 368 NYS2d 779, aff’d 51 AD2d 673, 378 NYS2d 165 (1976)].

            In contrast, I do not believe that a request by a governmental entity seeking records in the performance of its official governmental duties can be equated with or should be treated in the same manner as a request made by a member of the public under the Freedom of Information Law.  As  as a general matter, the Freedom of Information Law is permissive.  Stated differently, even though an agency, such as the Department,  may withhold records in accordance with the grounds for denial listed in §87(2), it is not required to do so [see Capital Newspapers v. Burns, 109 AD2d 92, aff’d 67 NY2d 562 (1986)].  Therefore, even though records requested under the Freedom of Information Law might justifiably be withheld from a member of the public, the same considerations need not apply when a request is made by a government agency attempting to carry out its governmental duties.

            When records requested by a governmental entity may be withheld from the public under the Freedom of Information Law, but it is believed in that circumstance that disclosure would enhance that entity’s functions, I believe that the Department may choose to disclose the records.  In that case, it has been suggested that the entity indicate that its request is not being made pursuant to the Freedom of Information Law, but rather in the performance of its official duties.  Similarly, when opting to disclose, it has been recommended that the agency so doing might specify in a cover letter or similar document that the records ordinarily would be withheld from the public under the Freedom of Information Law, but that the agency is disclosing because the request was clearly made by a governmental entity in the performance of its official duties.  By so doing, the Department would enhance the ability of the entity seeking records in performing its duties, but avoid creating a precedent or the appearance of a precedent that might suggest that the records are available to any member of the public under the Freedom of Information Law.

            In my view, based on the facts that you provided, the records that were initially withheld were disclosed to the Committee with the understanding that the records were sought in the performance of the Committee’s official duties, as well as a recognition that those records could justifiably be withheld from the public if requested under the Freedom of Information Law.

            Second, and in conjunction with the foregoing, the issue involves whether or the extent to which disclosure to the Committee might constitute a waiver of the Department’s ability to withhold records sought by the public pursuant to the Freedom of Information Law.  While I do not believe that disclosure created a waiver of the ability to withhold inter-agency or intra-agency materials requested under the Freedom of Information Law, the ability to assert the attorney-client or work product privileges was, in my opinion, waived by virtue of disclosure to the Committee.  Nevertheless, for reasons that were discussed during our telephone conversation of the matter, due to the nature and content of the records subject to those privileges, it appears that Department continues to have the ability to deny access.

            With respect to the ability to deny access, §87(2)(g) 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.

            Although the provision quoted above permits the Department to withhold portions of inter-agency and intra-agency communications consisting of advice, opinion, recommendations and similar content, as suggested earlier, there is no obligation to do so.  That being so, I believe that the Department properly asserted its discretionary authority to disclose those communications to the Committee.  Further, for the reasons offered above, because the disclosure was made to the Committee which requested the records in the performance of its duties, that disclosure would not in my opinion create a right of access on the part of the general public.

            Lastly, it has been advised that records subject to the attorney-client and/or attorney work product privileges are confidential based respectively on §§4503 and 3101(c) of the Civil Practice Law and Rules (CPLR) and, therefore, under §87(2)(a) of the Freedom of Information Law concerning records that “are specifically exempted from disclosure by state or federal statute.”   It has also been advised that those privileges are not waived when disclosure of privileged material is shared with a party at interest in litigation, or when the holder of privileged material is required to disclose the material to comply with law.  For instance, regulatory agencies may require that regulated entities submit privileged material to those agencies to comply with law and enable those agencies to perform their statutory duties.  In those cases, because the regulated entities are compelled to disclose, this office has advised that the privilege is not deemed to have been waived.  In the instant circumstance, disclosure was not compelled, but rather was voluntary.  Consequently, in my opinion, the disclosure of records otherwise confidential under the attorney-client and work product privileges constituted a waiver of the ability to assert §§4503 or 3101(c) of the CPLR, or §87(2)(a) of the Freedom of Information Law.               

            During our discussion of the records otherwise subject to the CPLR privileges, you explained that they consisted largely of requests for and the rendering of legal advice and opinions, and that all such communications were made either within the Department or between Department officials and officials of other state agencies.  To the extent that is so, the records would constitute inter-agency or intra-agency materials that may be withheld pursuant to §87(2)(g) of the Freedom of Information Law.  Further, the waiver of the privilege would have no impact, in my view, on the Department’s authority to deny access under §87(2)(g).

            Should any questions arise regarding the foregoing, please feel free to contact me.

            I hope that I have been of assistance.                                                                                      
                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

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