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May 19, 1993

 

Mr. Harvey M. Elentuck
139-15 83 Avenue
Jamaica, N.Y. 11435

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. Elentuck:

As you are aware I have received your letter of May 4 and the
materials attached to it. You have raised a series of questions
concerning a request of January 5 addressed to George J. Colwell,
the Records Access Officer at Community School District 24.

As I understand your comments, you received a letter in 1987
from Mary A. Cummins, President of the School Board, in which she
referred to certain phrases, and on the basis of those phrases, you
requested records. Specifically, the request involves "Mary A.
Cummins' files of 'soul-stirring' correspondence," "Mary A.
Cummins' files of correspondence that '[brightens her] drab
existence,'" "Mary A. Cummins' files of correspondence with
individuals whom she '[hopes] to never hear from...again,'" and
"the rest of Mary A. Cummins' correspondence files." Mr. Colwell
indicated that he was "unable to ascertain what records you are
requesting." I would conjecture that the phrases used by Ms.
Cummins might have been employed somewhat flippantly or jocularly,
and that there are no files or file headings that specifically deal
with or are reflective of correspondence described by those
phrases. The issue, on the basis of your commentary, is whether
those aspects of your request reasonably described the records, a
matter that was considered exhaustively in my letter to you of
April 6.

A second question involves a recent request for records
initially sought in 1983 and the response thereto in May of that
year by Stanley Kaliakos. That request involved:

"1) All personnel files from September 1977 -
May 1983 for each junior high school and
intermediate school.

2) All personnel files of teachers currently
working in District 24 who received U-ratings.

3) All personnel files of former teachers who
received U-ratings, were discontinued, or who
were denied tenure.

4) Virginia Morrissey's personnel file.

5) Files located in George Colwell's office.

6) Files located in Community School Board
office.

7) OP 152B at J.930."

Mr. Kaliakos wrote that he would meet with you at particular time
"to inspect personnel files," and you expressed the belief that "it
may be fairly inferred...that he fully intended to grant access to
the items [you] had been requesting at that time." Consequently,
you questioned the propriety of Mr. Colwell's recent denial of
access to the same or equivalent records. Despite Mr. Kakalios'
statement, in my opinion, in view of the volume of the records and
their nature, it could hardly be inferred that all such records
were intended to be made available. Further, access to personnel
files, particularly those relating to U-ratings, have been the
subject of numerous opinions prepared over the course of years at
your request, and I do not believe that there is any need to
reiterate points previously made.

Your third question is whether "§100.2(o)(1,2) of the
Regulations of the Commissioner of Education expand[s] upon rights
of access granted by FOIL in connection with accessing the item q
records". Item q involves a request for "Community School District
24's procedures and criteria concerning the evaluation of
professional staff and the community superintendent..." promulgated
to comply with the Commissioner's regulations. Although those
regulations state in part that the procedures required to be
developed shall be "available for review by an individual no later
than August 1st of each year", I do not believe that the
regulations expand upon rights conferred by the Freedom of
Information Law. In my view, the procedures envisioned by the
regulations, which involve performance review and criteria, would
be available under the Freedom of Information Law even in the
absence of the specific direction provided in the regulations. In
short, the records in question would in my opinion constitute
either instructions to staff that affect the public available under
§87(2)(g)(ii) of the Freedom of Information Law or final agency
policies available under §87(2)(g)(iii). As such, I believe that
a denial of access to those records would be inappropriate.

Lastly, you referred to a denial of access to the records
sought in item s of your request, "the Community School District's
and Board's Commissioner of Education appeals files and Court
litigation files." In this regard, 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 similar 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. In general, when 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 or another agency (i.e., the State Education Department),
they would also be available under the Freedom of Information Law
from the District.

As you requested, copies of the advisory opinion of April 6
will be forwarded to the persons identified in your letter.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director
RJF:jm

cc: George J. Colwell, Records Access Officer