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December 27, 1993

 

 

Mr. Claude Phillips
69 Mt. Pleasant Avenue
Troy, NY 12180

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. Phillips:

I have received your letter of November 18 and the materials
attached to it. You have raised several issues concerning requests
for records of the Enlarged City School District of Troy and its
implementation of the Freedom of Information Law.

Having sought my opinion regarding those issues, I offer the
following comments.

The first involves access to bills for services rendered by
attorneys engaged by the District. It is your view that the bills
have been "sanitized" by means of various deletions "more than is
necessary or legitimate."

In this regard, as you are aware, 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.

In my opinion, bills, vouchers, contracts, receipts and
similar records reflective of payments made or expenses incurred by
an agency or payments made to an agency's staff or agents are
generally available, for none of the grounds for denial would be
applicable in most instances. With specific respect to payments to
attorneys, I point out that, while the communications between an
attorney and client are often privileged, it has been established
in case law that records of the monies paid and received by an
attorney or a law firm for services rendered to a client are not
privileged [see e.g., People v. Cook, 372 NYS 2d 10 (1975)]. If,
however, portions of time sheets, bills or related records contain
information that is confidential under the attorney-client
privilege, those portions could in my view be withheld under
§87(2)(a) of the Freedom of Information Law, which permits an
agency to withhold records or portions thereof that are
"specifically exempted from disclosure by state or federal statute"
(see Civil Practice Law and Rules, §4503). Therefore, while some
identifying details or descriptions of services rendered found in
the records in question might justifiably be withheld, numbers
indicating the amounts expended and other details to be discussed
further are in my view accessible under the Freedom of Information
Law.

Due to the duties of a school district, there may be other
grounds for denial that could be asserted to withhold portions of
the records in question. For instance, insofar as the records
identify or could identify particular students, I believe that they
must be withheld. Another statute that exempts records from
disclosure is the Family Education Rights and Privacy Act (20
U.S.C. §1232g), which is commonly known as the "Buckley Amendment".
In brief, the Buckley Amendment applies to all educational agencies
or institutions that participate in grant programs administered by
the United States Department of Education. As such, the Buckley
Amendment includes within its scope virtually all public
educational institutions and many private educational institutions.
The focal point of the Act is the protection of privacy of
students. It provides, in general, that any "education record," a
term that is broadly defined, that is personally identifiable to a
particular student or students is confidential, unless the parents
of students under the age of eighteen waive their right to
confidentiality, or unless a student eighteen years or over
similarly waives his or her right to confidentiality. Further, the
federal regulations promulgated under the Buckley Amendment define
the phrase "personally identifiable information" to include:

"(a) The student's name;
(b) The name of the student's parents or
other family member;
(c) The address of the student or
student's family;
(d) A personal identifier, such as the
student's social security number or
student number;
(e) A list of personal characteristics
that would make the student's
identity easily traceable; or
(f) Other information that would make
the student's identity easily
traceable" (34 CFR Section 99.3).

Based upon the foregoing, references to students' names or other
aspects of records that would make a student's identity easily
traceable must in my view be withheld in order to comply with
federal law. Similarly, references to employees involved in
disciplinary proceedings when such proceedings have not resulted in
any final determination reflective of misconduct could be withheld
on the ground that disclosure would constitute "an unwarranted
invasion of personal privacy" [see Herald Company v. School
District of the City of Syracuse, 430 NY 2d 460 (1980)]. In
addition, §87(2)(c) enables agencies to withhold records to the
extent that disclosure would "impair present or imminent contract
awards or collective bargaining negotiations." That provision may
also be pertinent in determining access. In short, there may be a
variety of situations in which details found within a bill or
similar statement may justifiably be withheld.

Based upon the judicial interpretation of the Freedom of
Information Law, information should be extracted from a bill or
similar record in an effort to ensure that the public can know the
amount of time billed by attorneys and the charges incurred by the
District. Knapp v. Board of Education, Canisteo Central School
District (Supreme Court, Steuben County, November 23, 1990)
involved an applicant ("petitioner") who sought billing statements
for legal services provided to the Board ("respondents") by a law
firm. Since the statements made available included "only the time
period covered and the total amount owed for services and
disbursements", petitioner contended that "she is entitled to that
billing information which would detail the fee, the type of matter
for which the legal services were rendered and the names of the
parties to any current litigation". In its discussion of the
issue, the court found that:

"The difficulty of defining the limits of the
attorney client privilege has been recognized
by the New York State Court of Appeals.
(Matter of Priest v. Hennessy, 51 NY2d 62,
68.) Nevertheless, the Court has ruled that
this privilege is not limitless and generally
does not extend to the fee arrangements
between an attorney and client. (Matter of
Priest v. Hennessy, supra.) As a
communication regarding a fee has no direct
relevance to the legal advice actually given,
the fee arrangement is not privileged.
(Matter of Priest v. Hennessy, supra. at 69.)

"There appear to be no New York cases which
specifically address how much of a fee
arrangement must be revealed beyond the name
of the client, the amount billed and the terms
of the agreement. However, the United States
Court of Appeals, in interpreting federal law,
has found that questions pertaining to the
date and general nature of legal services
performed were not violative of client
confidentiality. (Cotton v. United States,
306 F.2d 633.) In that Court's analysis such
information did not involve the substance of
the matters was not privileged...

"...Respondents have not justified their
refusal to obliterate any and all information
which would reveal the date, general nature of
service rendered and time spent. While the
Court can understand that in a few limited
instances the substance of a legal
communication might be revealed in a billing
statement, Respondents have failed to come
forward with proof that such information is
contained in each and every document so as to
justify a blanket denial of disclosure.
Conclusory characterizations are insufficient
to support a claim of privilege. (Church of
Scientology v. State of New York, 46 NY 2d
906, 908.)...Therefore, Petitioner's request
for disclosure of the fee, type of matter and
names of parties to pending litigation on each
billing statement must be granted."

In my view, disclosure of information analogous to that
described in Knapp would be appropriate. It is reiterated,
however, that any such disclosure need not include, for example,
information identifiable to students or to employees against whom
disciplinary charges are pending, or which if disclosed would
impair the contracting or collective bargaining process.

A second issue involves the specificity of requests. The
President of the Board has suggested that requests be
"particularized" in order "to allow [the District's] record-holder
a fair opportunity to identify what's been requested." However, it
is your view, that the "District wants to 'particularize' a request
so that the School District can give [you] the record they want to
give [you] - not the record [you] are after."

Viewing the Freedom of Information Law from an historical
perspective, I point out that the Law as originally enacted
required an applicant to seek "identifiable" records [see original
Freedom of Information Law, §88(6)]. That standard resulted in
difficulty and, in some cases, impossibility, when applicants could
not name or identify records with specificity. However, when the
original Freedom of Information Law was repealed and replaced with
the current statute, which became effective in 1978, the standard
for making a request was altered. Under §89(3) of the current Law,
an applicant must "reasonably describe" the records sought. Based
upon that standard, it has been held that a request reasonably
describes the records when the agency can locate and identify the
records based on the terms of a request, irrespective of the
breadth of the request, and that to deny a request on the ground
that it fails to reasonably describe the records, an agency must
establish that "the descriptions were insufficient for purposes of
locating and identifying the documents sought" [Konigsberg v.
Coughlin, 68 NY 2d 245, 249 (1986)].

You also questioned the process by which requests are
answered, how records sought are reviewed, and how appeals are
determined. In this regard, by way of background, §89(1)(b)(iii)
of the Freedom of Information Law requires the Committee on Open
Government to promulgate regulations concerning the procedural
implementation of the Law (see 21 NYCRR Part 1401). In turn,
§87(1) requires the governing body of a public corporation, i.e.,
a board of education, to adopt rules and regulations consistent
with the Law and the Committee's regulations.

Relevant to your inquiry is §1401.2 of the regulations, which
provides in relevant part that:

"(a) The governing body of a public
corporation and the head of an executive
agency or governing body of other agencies
shall be responsible for insuring compliance
with the regulations herein, and shall
designate one or more persons as records
access officer by name or by specific job
title and business address, who shall have the
duty of coordinating agency response to public
requests for access to records. The
designation of one or more records access
officers shall not be construed to prohibit
officials who have in the past been authorized
to make records or information available to
the public from continuing to do so.

(b) The records access officer is responsible
for assuring that agency personnel...

(3) Upon locating the records, take one of
the following actions:

(i) make records promptly available for
inspection; or
(ii) deny access to the records in whole or in
part and explain in writing the reasons
therefor..."

In view of the foregoing, the records access officer has the "duty
of coordinating agency response" to requests and assuring that
agency personnel act appropriately in response to requests. As
such, in my opinion, either the records access officer or some
other person should respond to requests in a manner consistent with
the Freedom of Information Law.

With regard to appeals, the regulations provide that:

"(a) The governing body of a public
corporation or the head, chief executive or
governing body of other agencies shall hear
appeals or shall designate a person or body to
hear appeals regarding denial of access to
records under the Freedom of Information Law.

(b) Denial of access shall be in writing
stating the reason therefor and advising the
person denied access of his or her right to
appeal to the person or body established to
hear appeals, and that person or body shall be
identified by name, title, business address
and business telephone number. The records
access officer shall not be the appeals
officer" (§1401.7).

The last sentence in the quotation above is intended, in my
opinion, to ensure that the person who determines an appeal does so
independently of the person or persons who initially reviewed the
records sought and responded to the request.

Lastly, you questioned the costs incurred by the District
relative to its payments to attorneys for their review of records
and legal counsel given concerning requests for records under the
Freedom of Information Law. While this office is not responsible
for viewing records of another agency that has received a request,
the Committee on Open Government, as indicated at the beginning of
this letter, is authorized to provide advice and opinions
concerning that statute. You and others, including District
officials, have sought our advice in the past, and you and
government officials may continue to do so -- at no direct cost.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Board of Education