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FOI-AO-18994
                                                                                    November 21, 2012
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 Ms.:

I have received your letter and the materials relating to it.  In your capacity as a professional journalist employed by the Buffalo News, you have sought an advisory opinion concerning a denial of access to a report prepared for the Board of Education of the School District of the City of Buffalo.

By way of background, you wrote that in October, 2011, the Board voted to retain a law firm, Bond, Schoeneck & King, “to investigate issues related to Debbie Buckley, an assistant superintendent who had been suspended in September 2011.  Ms. Buckley had overseen the district’s office of federal and state programs, which oversees about $100 million of grants every year.”  The investigator’s report was completed, apparently in June, and Board members were given the opportunity to read the report in District offices and were not permitted to have copies.  According to your letter, that was so “because district officials feared that a copy of the report would be leaked” to you.  By a vote of 8 to 1, the Board voted to terminate Buckley on July 3. 

You requested a copy of the report pursuant to the Freedom of Information Law (FOIL) that same day, and on July 11, the request was denied on the ground that it “is protected by the attorney-client privilege” and, therefore is exempt from disclosure pursuant to §87(2)(a) of FOIL.  That provision pertains to records that “are specifically exempted from disclosure by state or federal statute.”

In this regard, I note at the outset that the Board and the School District clearly fall within the scope of FOIL.  As suggested to you during our discussion of the matter, while there are likely portions of the report that may justifiably be withheld, I believe that it is equally likely that there are  portions of the report that cannot be characterized as privileged and that must be disclosed to comply with FOIL.  In this regard, I offer the following comments.

First, and significantly in consideration of the absence of any disclosure in response to the request, and as you know, FOIL 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. 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 FOIL 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[4][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)].

            Just as significant, the Court in Gould repeatedly specified that a blanket denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the New York City Police Department contended that complaint follow up reports could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g), an exception that was not cited in response to your request. The Court, however, wrote that: "Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports. We agree" (id., 276), and stated as a general principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (id., 275). The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, stating that:

"...to invoke one of the exemptions of section 87(2), the agency must articulate 'particularized and specific justification' for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

In the context of the request, the District engaged in a blanket denial of access in a manner which, in my view, is equally inappropriate. I am not suggesting that the records sought must be disclosed in full. Rather, based on the direction given by the Court of Appeals in several decisions, the records must be reviewed by that agency for the purpose of identifying those portions of the records that might fall within the scope of one or more of the grounds for denial of access. As the Court stated later in the decision: "Indeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof, under any other applicable exemption, such as the law-enforcement exemption or the public-safety exemption, as long as the requisite particularized showing is made" (id., 277; emphasis added).

Second, with respect to the basis for the denial of access cited by the District, §4503 of the Civil Practice Law and Rule (CPLR) is a codification of the attorney-client privilege, and §3101 creates an exemption from discovery regarding the work product of an attorney. Section 3101 pertains disclosure in a context related to litigation, and subdivision (a) reflects the general principle that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action..." It is intended to shield from an adversary records that would result in a strategic advantage or disadvantage, as the case may be. In a decision in which it was determined that records could justifiably be withheld as attorney work product, the "disputed documents" were "clearly work product documents which contain the opinions, reflections and thought process of partners and associates" of a law firm "which have not been communicated or shown to individuals outside of that law firm" [Estate of Johnson, 538 NYS 2d 173 (1989)].            

In another decision in which the ability to withhold records based on the assertion of the attorney-client privilege or that records reflect the work product of an attorney was discussed, it was found that:

"The attorney-client privilege requires some showing that the subject information was disclosed in a confidential communication to an attorney for the purpose of obtaining legal advice (Matter of Priest v. Hennessy, 51 N.Y.2d 62, 68-69, 431 N.Y.S.2d 511, 409 N.E.2d 983). The work-product privilege requires an attorney affidavit showing that the information was generated by an attorney for the purpose of litigation (see, Warren v. New York City Tr. Auth., 34 A.D.2d 749, 310 N.Y.S.2d 277). The burden of satisfying each element of the privilege falls on the party asserting it (Priest v. Hennessy, supra, 51 N.Y.2d at 69, 431 N.Y.S. 2d 511, 409 N.E.2d 983), and conclusory assertions will not suffice (Witt v. Triangle Steel Prods. Corp., 103 A.D.2d 742, 477 N.Y.S.2d 210)" [Coastal Oil New York, Inc. v. Peck, [184 AD 2d 241 (1992)].

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 and in consideration of the nature of the content of the record at issue, I do not believe that every aspect of the report could be considered to be subject to the attorney-client privilege or characterized as attorney work product.  Further, since they serve as a barrier to disclosure, it is emphasized that the courts have narrowly construed those privileges. It has been held that only the work product that involves the learning and professional skills possessed only by an attorney is exempt from disclosure [see Soper v. Wilkinson Match, 176 Ad2d 1025 (1991); Hoffman v. Ro-San Manor, 73 AD2d 207 (1980)].

In short, insofar as the content of the report does not reflect the specialized skill that can be offered only by an attorney, I do not believe that it can be withheld based on a contention that it is subject to the attorney-client privilege or that it consists of attorney work product.  To the extent that those privileges cannot justifiably be asserted, FOIL would govern rights of access to the report. 

            To be fair and complete, I note that the foregoing is not intended to suggest that those portions of the report that are subject to FOIL must necessarily be disclosed.  It is likely in my view that some must be disclosed, while others may be withheld.

A critical provision that was not referenced as a basis for denying access either in the initial response to the request or the appeal is §87(2)(g) of FOIL.  It appears that the law firm that prepared the report may be characterized as a consultant.  If that is so, the report would constitute “intra-agency material” that falls within the coverage of §87(2)(g). Although that provision potentially authorizes an agency to deny access, due to its structure, it often requires substantial disclosure. The cited 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..."

I point out 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.

The same kind of analysis would apply with respect to records prepared by consultants foragencies, for the Court of Appeals has held that:

"Opinions and recommendations prepared by agency personnel may be exempt from disclosure under FOIL as 'predecisional materials, prepared to assist an agency decision maker***in arriving at his decision' (McAulay v. Board of Educ., 61 AD 2d 1048, aff'd 48 NY 2d 659). Such material is exempt 'to protect the deliberative process of government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers (Matter of Sea Crest Const. Corp. v. Stubing, 82 AD 2d 546, 549).

"In connection with their deliberative process, agencies may at times require opinions and recommendations from outside consultants. It would make little sense to protect the deliberative process when such reports are prepared by agency employees yet deny this protection when reports are prepared for the same purpose by outside consultants retained by agencies. Accordingly, we hold that records may be considered 'intra-agency material' even though prepared by an outside consultant at the behest of an agency as part of the agency's deliberative process (see, Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD 2d 546, 549, supra; Matter of 124 Ferry St. Realty Corp. v. Hennessy, 82 AD 2d 981, 983)" [Xerox Corporation v. Town of Webster, 65 NY 2d 131, 132-133 (1985)].

Based upon the foregoing, records prepared by a consultant for an agency, i.e., the law firm, maybe withheld or must be disclosed based upon the same standards as in cases in which records are prepared by the staff of an agency. It is emphasized that the Court in Xerox specified that the  contents of intra-agency materials determine the extent to which they may be available or withheld, for it was held that:

"While the reports in principle may be exempt from disclosure, on this record - which contains only the barest description of them – we cannot determine whether the documents in fact fall wholly within the scope of FOIL's exemption for 'intra-agency materials,' as claimed by respondents. To the extent the reports contain 'statistical or factual tabulations or data' (Public Officers Law section 87[2][g][i], or other material subject to production, they should be redacted and made available to the appellant" (id. at 133).

Therefore, a record prepared by a consultant for an agency would be accessible or deniable, in whole or in part, depending on its contents.

The Court of Appeals has considered the scope of material consisting of “factual data” and determined that:

"...Although the term 'factual data' is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549]).  Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of 'statistical or factual tabulations or data' (Public Officers Law 87[2][g][i].  Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182).

"Against this backdrop, we conclude that the complaint follow-up reports contain substantial factual information available pursuant to the provisions of FOIL.  Sections of the report are devoted to such purely factual data as: the names, addresses, and physical descriptions of crime victims, witnesses, and perpetrators; a checklist that indicates whether the victims and witnesses have been interviewed and shown photos, whether crime scenes have been photographed and dusted for fingerprints, and whether neighborhood residents have been canvassed for information; and a blank space denominated 'details' in which the officer records the particulars of any action taken in connection with the investigation" (Gould, supra, 276-277)."

While the records at issue in the case cited above involved incident reports prepared by police officers, the thrust of the holding is clear, that factual information, irrespective of the manner in which it appears, is generally accessible.  I would conjecture that the report in question includes not only legal advice or opinions, but also factual information that must be disclosed, unless a separate exception may properly be asserted.

In an effort to enhance compliance with and understanding of FOIL, a copy of this opinions will be forward to the Board and District officials with the hope that they will reconsider the blanket denial of access to report.

I hope that I have been of assistance.

RFJ:mm
cc: Board of Education
Amber Dixon
Nathaniel Kuzma