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January 26, 1994

 

 

Mr. Peter W. Sluys
Managing Editor
Community Media Inc.
25 W. Central Ave., Box 93
Pearl River, NY 10965

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. Sluys:

I have received your letter of December 28 in which you sought
a "ruling" concerning the Freedom of Information Law.

According to the letter, you requested a copy of a summons and
complaint served upon the Wappingers Central School District by its
former superintendent. You added that the complaint was filed in
federal court and alleged that the District breached the former
superintendent's contract. The request was denied based upon a
contention that "this information is held by our [the District's]
attorney and, therefore, is not available".

In this regard, it is emphasized at the outset that the
Committee is authorized to provide advice pertaining to the Freedom
of Information Law. This office is not empowered to issue a
"ruling" that is binding. However, in an effort to advise, educate
and persuade, I offer the following comments.

First, in my opinion, the physical possession by the District
of the records sought, or the absence thereof, is not necessarily
determinative of rights of access. The Freedom of Information Law
pertains to agency records, and §86(4) of that statute defines the
term "record" expansively to include:

"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions. folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."

The Court of Appeals has construed the definition as broadly
as its specific language suggests. The first such decision that
dealt squarely with the scope of the term "record" involved
documents pertaining to a lottery sponsored by a fire department.
Although the agency contended that the documents did not pertain to
the performance of its official duties, i.e., fighting fires, but
rather to a "nongovernmental" activity, the Court rejected the
claim of a "governmental versus nongovernmental dichotomy" [see
Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581
(1980)] and found that the documents constituted "records" subject
to rights of access granted by the Law. Moreover, the Court
determined that:

"The statutory definition of 'record' makes
nothing turn on the purpose for which it
relates. This conclusion accords with the
spirit as well as the letter of the statute.
For not only are the expanding boundaries of
governmental activity increasingly difficult
to draw, but in perception, if not in
actuality, there is bound to be considerable
crossover between governmental and
nongovernmental activities, especially where
both are carried on by the same person or
persons" (id.).

In a decision involving records prepared by corporate boards
furnished voluntarily to a state agency, the Court of Appeals
reversed a finding that the documents were not "records," thereby
rejecting a claim that the documents "were the private property of
the intervenors, voluntarily put in the respondents' 'custody' for
convenience under a promise of confidentiality" [Washington Post v.
Insurance Department, 61 NY 2d 557, 564 (1984)]. Once again, the
Court relied upon the definition of "record" and reiterated that
the purpose for which a document was prepared or the function to
which it relates are irrelevant. Moreover, the decision indicated
that "When the plain language of the statute is precise and
unambiguous, it is determinative" (id. at 565).

From my perspective, based upon its specific language, the
definition of "record" includes not only documents that are
physically maintained by an agency; it refers to documents are that
are "kept, held, filed, produced or reproduced by, with or for an
agency." While the District may not have physical possession of
the records sought, the facts indicate that they are being
maintained for the District. Consequently, even though they are
not physically maintained by the District, I believe that the
records sought are District records subject to rights conferred by
the Freedom of Information Law.

Second, 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 view, none of the grounds for denial would be
applicable. It is noted that the first ground for denial,
§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. 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. In my opinion, when records sought are publicly
available from a court, duplicates of those records would also be
available under the Freedom of Information Law from the District.
In short, papers submitted by the plaintiff to the District could
not in my view be characterized as privileged or confidential, for
they are known to and maintained by both parties.

In sum, I believe that the documents in question constitute
District records subject to rights conferred by the Freedom of
Information Law, irrespective of their physical location.
Additionally, as I understand the matter, there would be no basis
for withholding the records.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb
cc: Dr. Annmarie Mullen, Assistant Superintendent