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May 10, 1993

 

 

Mr. Brandon M. Stickney
Lockport Union-Sun Journal
459 S. Transit Street
Lockport, N.Y. 14094

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 Mr. Stickney:

I have received your letter of April 27 in which you raised
issues concerning both the Freedom of Information Law and the Open
Meetings Law.

With respect to the former, having requested records from the
Lockport School District concerning a retired teacher's lawsuit
against the District, you were informed that "further litigation"
could be pending and therefore the school district's attorney
denied the...request for the suing retiree's name, etc."

In this regard, by way of background, 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 (i) of the Law.

It is possible that some of the records fall within the scope
of the attorney-client privilege. Here I point out that the first
basis for denial in the Freedom of Information Law, §87(2)(a),
pertains to records that are "specifically exempted from disclosure
by state or federal statute." For nearly 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.d., People ex rel. Updyke v. Gilon, 9 NYS 243, 244 (1989);
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 also 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, material prepared for litigation may be confidential
under §3101 of the Civil Practice Law and Rules.

Nevertheless, legal papers filed against the District would
not have been prepared by the District, its officials or its
agents. As such, in my opinion, those papers would not be subject
to the attorney-client privilege. For similiar reasons, the
answers prepared by the District in response to a petition or legal
papers, once served upon a plaintiff or legal adversary, would be
outside the scope of the attorney-client privilege. As soon as
those papers are made available to the District's adversary, I
believe that they become a matter of public record. Moreover,
although the Freedom of Information Law does not apply to the
courts and court records, such records are generally available
under other provisions of law [see e.g., Judiciary Law, §255].
From my perspective, if the records sought are publicly available
from a court, they would also be available under the Freedom of
Information Law from the District. In short, papers submitted by
plaintiffs to the District and the District's responses thereto
could not in my opinion be characterized as privileged or
confidential, for they would have been communicated between or
among persons other than District officials and their legal
counsel.

The issue pertaining to the Open Meetings Law relates to the
procedure for entry into executive session to discuss litigation.
As you are aware, prior to entry into executive session, §105(1) of
the Open Meetings Law requires that a motion to conduct an
executive session be made during an open meeting, and that the
motion indicate the subject or subjects to be considered.

The provision that deals with litigation is §105(1)(d) of the
Open Meetings Law, which permits a public body to enter into an
executive session to discuss "proposed, pending or current
litigation". In construing the language quoted above, it has been
held that:

"The purpose of paragraph d is "to enable is
to enable a public body to discuss pending
litigation privately, without baring its
strategy to its adversary through mandatory
public meetings' (Matter of Concerned Citizens
to Review Jefferson Val. Mall v. Town Bd. Of
Town of Yorktown, 83 AD 2d 612, 613, 441 NYS
2d 292). The belief of the town's attorney
that a decision adverse to petitioner 'would
almost certainly lead to litigation' does not
justify the conducting of this public business
in an executive session. To accept this
argument would be to accept the view that any
public body could bar the public from its
meetings simply be expressing the fear that
litigation may result from actions taken
therein. Such a view would be contrary to
both the letter and the spirit of the
exception" [Weatherwax v. Town of Stony Point,
97 AD 2d 840, 841 (1983)].

Based upon the foregoing, I believe that the exception is intended
to permit a public body to discuss its litigation strategy behind
closed doors, rather than issues that might eventually result in
litigation. Since legal matters or possible litigation could be
the subject or result of nearly any topic discussed by a public
body, an executive session could not in my view be held to discuss
an issue merely because there is a possibility of litigation, or
because it involves a legal matter.

With regard to the sufficiency of a motion to discuss
litigation, it has been held that:

"It is insufficient to merely regurgitate the
statutory language; to wit, 'discussions
regarding proposed, pending or current
litigation'. This boilerplate recitation does
not comply with the intent of the statute. To
validly convene an executive session for
discussion of proposed, pending or current
litigation, the public body must identify with
particularity the pending, proposed or current
litigation to be discussed during the
executive session" [Daily Gazette Co. , Inc.
v. Town Board, Town of Cobleskill, 44 NYS 2d
44, 46 (1981), emphasis added by court].

I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: Board of Education