NY.gov Portal State Agency Listing

 

April 22, 1994

 

 

Ms. Melody Mackenzie
Alec Mackenzie's Time Tactics
The Cannon Building
5 Broadway - Suite 202
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 Ms. Mackenzie:

I have received your letter of March 15 and correspondence
relating to it.

The materials pertain to a request made in September of 1992
directed to the Superintendent of the Peru Central School District.
You sought records in the "custody or control" of the District that
"refer or relate to the acquisition, design, construction,
financing, leasing, utilization or implementation of the Asbestos
Removal Project and all other projects that involved the services
of Moser and Moser," as well as "a complete accounting of all legal
fees, including bond counsel fees, paid to the firms or any of the
principals of Moser and Moser and Stafford, Purcell, Lahtinen,
Owens and Curtin over the last 5 years."

The receipt of your request was acknowledged on October 2,
when you were informed that a law firm had been retained to advise
the District with respect to the request, and that you would
receive a response granting or denying the request "in part or in
whole" by October 9. On that date, the Superintendent wrote to you
and stated that:

"I have had an opportunity to review your FOIL
request and concluded that it is a complex one
which will require much time and effort in
locating and assembling the records requested.
In addition, I find it to be vague in terms of
a time period for which documents are
requested in the 'asbestos removal project'.
With regard to the additional request, we are
in the process of putting together that
information. I will contact you when all this
becomes available...

"Presently, there is pending litigation
concerning the most recent asbestos project
and materials which have been prepared for the
purposes of that litigation will not be
provided to you."

Since you had not received any further response to the
request, you indicated that you contacted the Superintendent on
March 14, approximately a year and a half after requesting the
records, to question the status of the request. According to your
letter, he said "[y]ou're not getting anything from us, you have
everything you're going to get." When you asked if the request was
being denied, he answered affirmatively.

You have sought my views on the matter. In this regard, I
offer the following comments.

First, the Freedom of Information Law provides direction
concerning the time and manner in which agencies must respond to
requests. Specifically, §89(3) of that statute states in part
that:

"Each entity subject to the provisions of this
article, within five business days of the
receipt of a written request for a record
reasonably described, shall make such record
available to the person requesting it, deny
such request in writing or furnish a written
acknowledgement of the receipt of such request
and a statement of the approximate date when
such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the
receipt of a request is given within five business days, or if an
agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my
opinion, be considered to have been constructively denied.
Similarly, if an agency acknowledges the receipt of a request but
fails to provide a "statement of the approximate date when such
request will be granted or denied," the agency in my view would
have failed to comply with §89(3). In an analogous situation in
which the court found that a request was constructively denied, it
was stated that:

"The acknowledgement letters in this
proceeding neither granted nor denied
petitioner's request nor approximated a
determination date. Rather, the letters were
open ended as to time as they stated, 'that a
period of time would be required to ascertain
whether such documents do exist, and if they
did, whether they qualify for inspection'.

"This court finds that respondent's actions
and/or inactions placed petitioner in a 'Catch
22' position. The petitioner, relying on the
respondent's representation, anticipated a
determination to her request. While the
petitioner may have been well advised to seek
an appeal...this court finds that this
petitioner should not be penalized for
respondent's failure to comply with Public
Officers Law §89(3), especially when
petitioner was advised by respondent that a
decision concerning her application would be
forthcoming...

"It should also be noted that petitioner did
not sit idle during this period but rather
made numerous efforts to obtain a decision
from respondent including the submission of a
follow up letter to the Records Access Officer
and submission of various requests for said
records with the different offices of the
Department of Transportation.

"Therefore, this court finds that respondent
is estopped from asserting that this
proceeding is improper due to petitioner's
failure to appeal the denial of access to
records within 30 days to the agency head, as
provided in Public Officers Law §89(4)(a)"
(Bernstein v. City of New York, Supreme Court,
NYLJ, November 7, 1990).

When a request is constructively denied or denied in writing,
I believe that the denial may be appealed in accordance with
§89(4)(a) of the Freedom of Information Law. That provision states
in relevant part that:

"any person denied access to a record may
within thirty days appeal in writing such
denial to the head, chief executive, or
governing body, who shall within ten business
days of the receipt of such appeal fully
explain in writing to the person requesting
the record the reasons for further denial, or
provide access to the record sought."

In addition, it has been held that when an appeal is made but
a determination is not rendered within ten business days of the
receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her
administrative remedies and may initiate a challenge to a
constructive denial of access under Article 78 of the Civil
Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57
NY 2d 774 (1982)].

Second, §89(3) of the Freedom of Information Law states in
part that an applicant must "reasonably describe" the records
sought. In considering that standard, the State's highest court
has found that requested records need not be specifically
designated, that to meet the standard, the terms of a request must
be adequate to enable the agency to locate the records, and that an
agency must "establish that 'the descriptions were insufficient for
purposes of locating and identifying the documents sought'...before
denying a FOIL request for reasons of overbreadth" [Konigsberg v.
Coughlin, 68 NY 2d 245, 249 (1986)].

Although it was found in the decision cited above that the
agency could not reject the request due to its breadth, it was also
stated that:

"respondents have failed to supply any proof
whatsoever as to the nature - or even the
existence - of their indexing system: whether
the Department's files were indexed in a
manner that would enable the identification
and location of documents in their possession
(cf. National Cable Tel. Assn. v Federal
Communications Commn., 479 F2d 183, 192
[Bazelon, J.] [plausible claim of
nonidentifiability under Federal Freedom of
Information Act, 5 USC section 552 (a) (3),
may be presented where agency's indexing
system was such that 'the requested documents
could not be identified by retracing a path
already trodden. It would have required a
wholly new enterprise, potentially requiring a
search of every file in the possession of the
agency']" (id. at 250).

In my view, whether a request reasonably describes the records
sought, as suggested by the Court of Appeals, may be dependent upon
the terms of a request, as well as the nature of an agency's filing
or record-keeping systems. In Konigsberg, it appears that the
agency was able to locate the records on the basis of an inmate's
name and identification number. In this instance, I am unaware of
the means by which the District maintains records concerning the
asbestos removal project or whether Moser and Moser was involved
with the District in activities other than the asbestos removal
project. Nevertheless, it would appear that the District could
likely locate and identify a variety of records falling within that
aspect of your request. To that extent, I believe that the request
would have reasonably described the records. Insofar as the
request might not have met that standard, I point out that the
regulations promulgated by the Committee on Open Government (21
NYCRR Part 1401), which govern the procedural aspects of the
Freedom of Information Law, state in part that an agency's records
access officer has the duty of assuring that agency personnel
"assist the requester in identifying requested records, if
necessary". It does not appear that such an effort was made.

Third, as a general matter, 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.

Some of the records sought, particularly those relating to the
asbestos removal project that are predecisional, could likely be
withheld in whole or in part, depending upon their contents. For
instance, prior to retaining a firm, staff might have offered
written opinions or advice that would fall within §87(2)(g) of the
Freedom of Information Law. That provision enables 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..."

It is noted 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.

However, 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,
section 4503). Therefore, while some identifying details or
descriptions of services rendered found in the records sought 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.

There may be other grounds for denial that would apply with
regard to attorneys' bills or similar records pertaining to legal
work performed for a school district. For instance, insofar as
those kinds of 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. section 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.

Consequently, 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.

Whether the provisions or situations described above would be
relevant with respect to the particular records at issue concerning
legal fees is unknown to me. In a decision dealing with similar or
perhaps the same kind of records, Knapp v. Board of Education,
Canisteo Central School District (Supreme Court, Steuben County,
November 23, 1990), the case 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 required.

Lastly, since the Superintendent wrote that there is pending
litigation concerning the asbestos project, I refer once again to
§87(2)(a) regarding to records that are specifically exempted from
disclosure by state or federal statute. One such statute is
§3101(d) of the Civil Practice Law and Rules, which exempts
material prepared for litigation from disclosure. It is
emphasized, however, that it has been determined judicially that if
records are prepared for multiple purposes, one of which includes
eventual use in litigation, §3101(d) does not serve as a basis for
withholding records; only when records are prepared solely for
litigation can §3101(d) be properly asserted to deny access to
records [see e.g., Westchester-Rockland Newspapers v.
Mosczydlowski, 58 AD 2d 234 (1977)]. While some of the records
falling within the scope of your request might possibly have been
prepared solely for litigation, based upon the description of the
records, it appears unlikely that all of them were prepared solely
for litigation. To the extent that they were not prepared solely
for litigation, I believe that the records would subject to rights
conferred by the Freedom of Information Law.

Moreover, as stated by the Court of Appeals in a case
involving a request made under the Freedom of Information Law by a
person involved in litigation against an agency: "Access to
records of a government agency under the Freedom of Information Law
(FOIL) (Public Officers Law, Article 6) is not affected by the fact
that there is pending or potential litigation between the person
making the request and the agency" [Farbman v. NYC Health and
Hospitals Corporation, 62 NY 2d 75, 78 (1984)]. Similarly, in an
earlier decision, the Court of Appeals determined that "the
standing of one who seeks access to records under the Freedom of
Information Law is as a member of the public, and is neither
enhanced...nor restricted...because he is also a litigant or
potential litigant" [Matter of John P. v. Whalen, 54 NY 2d 89, 99
(1980)]. The Court in Farbman, supra, discussed the distinction
between the use of the Freedom of Information Law as opposed to the
use of discovery in Article 31 of the Civil Practice Law and Rules.
Specifically, it was found that:

"FOIL does not require that the party
requesting records make any showing of need,
good faith or legitimate purpose; while its
purpose may be to shed light on governmental
decision-making, its ambit is not confined to
records actually used in the decision-making
process (Matter of Westchester Rockland
Newspapers v. Kimball, 50 NY2d 575, 581.)
Full disclosure by public agencies is, under
FOIL, a public right and in the public
interest, irrespective of the status or need
of the person making the request.

"CPLR article 31 proceeds under a different
premise, and serves quite different concerns.
While speaking also of 'full disclosure'
article 31 is plainly more restrictive than
FOIL. Access to records under CPLR depends on
status and need. With goals of promoting both
the ascertainment of truth at trial and the
prompt disposition of actions (Allen v.
Crowell-Collier Pub. Co., 21 NY 2d 403, 407),
discovery is at the outset limited to that
which is 'material and necessary in the
prosecution or defense of an action'" [see
Farbman, supra, at 80].

Based upon the foregoing, the pendency of litigation would
not, in my opinion, affect either the rights of the public or a
litigant under the Freedom of Information Law, unless an exemption,
i.e., §3101(d) of the Civil Practice Law and Rules, could properly
be asserted.

In an effort to enhance compliance with and understanding of
the Freedom of Information Law, a copy of this opinion will be sent
to the Superintendent.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Warren E. Grund, Superintendent