January 31, 1995
Ms. Jessica Lowell
25 Dill Street
Auburn, NY 13021
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.
Dear Ms. Lowell:
I have received your letter of December 21 in which you requested an advisory opinion concerning the Freedom of Information Law. Please accept my apologies for the delay in response.
As of the date of your letter, a week had passed since an election in the Locke Fire District, but the results of the election had not yet been disclosed. You wrote that the fire district's attorney indicated that he could not inform you of the results "because of attorney-client privilege." The article pertaining to the election states that the validity of the election had been contested and that the attorney "said he was researching the law and would tell the board what he found at a special meeting."
In this regard, I offer the following comments.
First, the Freedom of Information Law is applicable to agency records, and §86(3) of that statute defines the term "agency" to mean:
"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."
A fire district is a public corporation [see General Construction Law, §66, and Town Law, §174(7)]. Consequently, I believe that a fire district is required to comply with 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.
From my perspective, a record indicating the results of an election must be disclosed. In short, none of the grounds for denial could be appropriately invoked to withhold such a record, and I do not believe that it could be shielded based on the assertion of the attorney-client privilege. As indicated in the news article, the results of an election must be filed within a specified period, and §174(2) of the Town Law provides in part that: "The fire district secretary in office at the time such election is held shall immediately notify the officers elected of their election..." Therefore, the results could hardly be characterized as secret or privileged.
To be distinguished would be records transmitted between fire district officials and their attorney in which the officials seek legal advice or in which the attorney offers legal advice. While those kinds of communications might fall within the scope of the attorney-client privilege, a tabulation of the results of an election would be separate and distinct from privileged communications. When the attorney-client privilege is validly asserted, records prepared in conjunction with a privileged relationship may be withheld. In such a circumstance, of relevance is §87(2)(a) of the Freedom of Information Law, the first ground for denial, 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.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Locke Fire District Board of Commissioners
Richard Zwirn, Esq.