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May 12, 1994

 

 

Ms. Susan Lettieri
202 Bridge Street
Roxbury, NY 12474

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. Lettieri:

As you are aware, I have received your letter of April 14.

In your capacity as a member of the Board of Education of the
Roxbury Central School District, you wrote that the Board adopted
a resolution to hire a law firm and an accounting firm "to
investigate the findings on Malfeasance, Misfeasance and non-feasance as set forth in the State Comptroller's Audit Report
released to the District on September 3, 1993." You added that the
resolution to retain those firms "called for an assessment of our
system of internal control and a determination of the amount of the
overcharge by the architect."

According to your letter, the report prepared pursuant to the
resolution contains three parts. The first was prepared by the
accountant and includes "data on facts and figures", "information
that the architect did not pay engineers that he hired to do work
for the district", and recommendations that efforts be made to
"recoup the money", an overcharge of nearly $258,000. The second
part, which you characterized as a "confidential report" prepared
by the accountant focuses on alleged overpayments, refers to the
role of the superintendent and the Board and offers certain
recommendations. The third, "a 'confidential report' labeled
Attorney/Client Communication", confirms that overpayments were
made to the architect and reaches conclusions concerning
"malfeasance, nonfeasance and misfeasance on the part of the
architect, board and superintendent." It also suggests that the
"continuation of deficiencies by the board may expose the current
board to significant or additional liability".

You have requested an advisory opinion "as to whether the
taxpayers can have access to this information" and indicated that
a motion to release the report, which was "received" rather than
"accepted", was defeated by a vote of 3 to 2. In this regard, I
offer the following comments.

First, the Freedom of Information Law is applicable to all
agency records, and §86(4) of the Law defines the term "record" to
mean:

"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."

Based on the foregoing, whether the documentation in question has
been "received" as opposed to "accepted" is irrelevant in my
opinion. So long as it is kept or held by or produced for the
District, I believe that it constitutes a "record" that falls
within the coverage of the Freedom of Information Law.

Second, 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.

Third, it has been found that a promise or assertion of
confidentiality cannot be upheld unless a statute specifically
confers confidentiality. In Gannett News Service v. Office of
Alcoholism and Substance Abuse Services [415 NYS 2d 780 (1979)], a
state agency guaranteed confidentiality to school districts
participating in a statistical survey concerning drug abuse. The
court determined that the promise of confidentiality could not be
sustained, and that the records were available, for none of the
grounds for denial appearing in the Freedom of Information Law
could justifiably be asserted. In a decision rendered by the Court
of Appeals, it was held that a state agency's:

"long-standing promise of confidentiality to
the intervenors is irrelevant to whether the
requested documents fit within the
Legislature's definition of 'record' under
FOIL. The definition does not exclude or make
any reference to information labeled as
'confidential' by the agency; confidentiality
is relevant only when determining whether the
record or a portion of it is exempt..."
[Washington Post v. Insurance Department, 61
NY 2d 557, 565 (1984)].

In short, unless it is based upon a statute, the characterization
of records as "confidential" may be meaningless. That is not to
suggest that such records must be disclosed, but rather that rights
of access would be determined in accordance with an analysis of the
grounds for denial appearing in the Freedom of Information Law. In
my view, three of those grounds are relevant to such an analysis.

It is assumed that the records in question were prepared by
persons or firms retained as consultants. Based upon the judicial
interpretation of the Freedom of Information Law, records prepared
for an agency by a consultant may be treated as "intra-agency"
materials that fall within the scope of §87(2)(g). That provision
permits 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.

In a discussion of the issue of consultant reports, the Court
of Appeals stated that:

"Opinions and recommendations prepared by
agency personnel may be exempt from disclosure
under FOIL as 'predecisional materials,
prepared to assist an agency decision
maker***in arriving at his decision' (McAulay
v. Board of Educ., 61 AD 2d 1048, aff'd 48 NY
2d 659). Such material is exempt 'to protect
the deliberative process of government by
ensuring that persons in an advisory role
would be able to express their opinions freely
to agency decision makers (Matter of Sea Crest
Const. Corp. v. Stubing, 82 AD 2d 546, 549).

"In connection with their deliberative
process, agencies may at times require
opinions and recommendations from outside
consultants. It would make little sense to
protect the deliberative process when such
reports are prepared by agency employees yet
deny this protection when reports are prepared
for the same purpose by outside consultants
retained by agencies. Accordingly, we hold
that records may be considered 'intra-agency
material' even though prepared by an outside
consultant at the behest of an agency as part
of the agency's deliberative process (see,
Matter of Sea Crest Constr. Corp. v. Stubing,
82 AD 2d 546, 549, supra; Matter of 124 Ferry
St. Realty Corp. v. Hennessy, 82 AD 2d 981,
983)" [Xerox Corporation v. Town of Webster,
65 NY 2d 131, 132-133 (1985)].

Based upon the foregoing, a report prepared by a consultant
for an agency may be withheld or must be disclosed based upon the
same standards as in cases in which records are prepared by the
staff of an agency. It is emphasized that the Court in Xerox
specified that the contents of intra-agency materials determine
the extent to which they may be available or withheld, for it was
held that:

"While the reports in principle may be exempt
from disclosure, on this record - which
contains only the barest description of them -
we cannot determine whether the documents in
fact fall wholly within the scope of FOIL's
exemption for 'intra-agency materials,' as
claimed by respondents. To the extent the
reports contain 'statistical or factual
tabulations or data' (Public Officers Law
section 87[2][g][i], or other material subject
to production, they should be redacted and
made available to the appellant" (id. at 133).

Therefore, a record prepared by a consultant for an agency would be
accessible or deniable, in whole or in part, depending on its
contents. It appears that, at the very least, those portions of
the report prepared by the accountant consisting of statistical or
factual information must be disclosed.

With respect to the portion of the report prepared by the
attorney, another ground for denial of likely relevance is
§87(2)(a), which pertains to records that "are specifically
exempted from disclosure by statute." One such statute is §4503 of
the Civil Practice Law and Rules, which makes confidential the
communications between an attorney and a client, such as a school
board under certain circumstances.

In a discussion of the parameters of the attorney-client
relationship and the conditions precedent to its initiation, it has
been held that:

"In general, 'the privilege applies only if
(1) the asserted holder of the privilege is or
sought to become a client; (2) the person to
whom the communication was made (a) is a
member of the bar of a court, or his
subordinate and (b) in connection with this
communication relates to a fact of which the
attorney was informed (a) by his client (b)
without the presence of strangers (c) for the
purpose of securing primarily either (i) an
opinion on law or (ii) legal services (iii)
assistance in some legal proceeding, and not
(d) for the purpose of committing a crime or
tort; and (4) the privilege has been (a)
claimed and (b) not waived by the client'"
[People v. Belge, 59 AD 2d 307, 399 NYS 2d
539, 540 (1977)].

Assuming that the privilege has not been waived, insofar as
the record consists of legal advice provided by counsel to the
client, the record would be confidential pursuant to §4503 of the
Civil Practice Law and Rules and, therefore, exempt from disclosure
under §87(2)(a) of the Freedom of Information Law.

The remaining ground for denial potential significance,
§87(2)(b) states that an agency may withhold records to the extent
that disclosure would result in "an unwarranted invasion of
personal privacy". I am unaware of the contents of the audit
report prepared by the Comptroller, its degree of detail, or the
extent to which it may refer to particular individuals. If the
comptroller's report, which appears to be a public record [see
§87(2)(g)(iv)], identifies individuals, an issue involves the
extent to which the report in question includes additional
information about them that could be withheld under §87(2)(b). In
my opinion, the nature of that information would serve as the
primary factor in ascertaining whether disclosure would result in
an unwarranted invasion of personal privacy.

While the standard concerning privacy is flexible and may be
subject to conflicting interpretations, the courts have provided
substantial direction regarding the privacy of public officers
employees. It is clear that public officers and employees enjoy a
lesser degree of privacy than others, for it has been found in
various contexts that public officers and employees are required to
be more accountable than others. Further, with regard to records
pertaining to public officers and employees, the courts have found
that, as a general rule, records that are relevant to the
performance of a their official duties are available, for
disclosure in such instances would result in a permissible rather
than an unwarranted invasion of personal privacy [see e.g., Farrell
v. Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v.
County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978);
Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing
Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty.,
March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims,
1978); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v.
NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988);
Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk
Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d
562 (1986)]. Conversely, to the extent that records are irrelevant
to the performance of one's official duties, it has been found that
disclosure would indeed constitute an unwarranted invasion of
personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty.,
NYLJ, Nov. 22, 1977].

In terms of the intent of the Freedom of Information Law, the
Court of Appeals, the State's highest court, has held:

"The Freedom of Information Law expresses this
State's strong commitment to open government
and public accountability and imposes a broad
standard of disclosure upon the State and its
agencies (see, Matter of Farbman & Sons v New
York City Health and Hosps. Corp., 62 NY 2d
75, 79). The statute, enacted in furtherance
of the public's vested and inherent 'right to
know', affords all citizens the means to
obtain information concerning the day-to-day
functioning of State and local government thus
providing the electorate with sufficient
information 'to make intelligent, informed
choices with respect to both the direction and
scope of governmental activities' and with an
effective tool for exposing waste, negligence
and abuse on the part of government officers"
(Capital Newspapers v. Burns, supra, 565-566).

Lastly, I point out that the Freedom of Information Law is
permissive. Although an agency may have the authority to withhold
records or portions thereof, there is no requirement that it must
do so. As stated by the Court of Appeals:

"...while an agency is permitted to restrict
access to those records falling within the
statutory exemptions, the language of the
exemption provision contains permissive rather
than mandatory language, and it is within the
agency's discretion to disclose such records,
with or without identifying details, if it so
chooses" (id., 567).

In sum, I believe that portions of the documentation in
question must be disclosed, irrespective of an assertion of
confidentiality; other aspects of it could be withheld in
accordance with the preceding commentary. Moreover, despite its
ability to withhold portions of the records, the District could
choose to disclose them.

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

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