January 27, 1997
Mr. Donald F. Pember
21 Woodway Road
South Salem, NY 10590
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, unless otherwise indicated.
Dear Mr. Pember:
I have received your letter of December 16 and the news article attached to it. You have sought an advisory opinion concerning the propriety of a denial of your request for a certain record by the Lewisboro Town Board, specifically, a report prepared for the Board by the Town Attorney.
As I understand the matter, an anonymous complaint was made that a dentist was operating his practice in violation of the Town codes, and the Board asked its attorney to prepare a report on the subject. In response to requests for the report, the Town denied access on the grounds that it fell within the attorney-client privilege, and in the words of the news article, "because the report contained a legal opinion, the whole document was an opinion from one town agency to another." The article also indicates that portions of the report were disclosed to the dentist who is the subject of the complaint. Further, one of the Board members suggested, without prevailing, the Board review the report "line-by-line" for the purpose of releasing those portions consisting of factual information.
In this regard, it is emphasized that I have not seen any part of the report at issue. As such, the ensuing comments should be considered as advisory only.
By way of background, 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 section 87(2)(a) through (i) of the Law. In my view, two of the grounds for denial appear to be pertinent to an analysis of rights of access.
Of relevance is §87(2)(a), 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, such as Town officials in this instance, 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)].
Based on the foregoing, assuming that the privilege has not been waived, and that records consist of legal advice provided by counsel to the client, such records would be confidential pursuant to §4503 of the Civil Practice Law and Rules and, therefore, exempted from disclosure under §87(2)(a) of the Freedom of Information Law. I point out, however, that a recent decision stressed that the attorney-client privilege should be narrowly applied. Specifically, in Williams & Connolly v. Axelrod, it was held that:
"To invoke the privilege, the party asserting it must demonstrate that an attorney-client relationship was established and that the information sought to be withheld was a confidential communication made to the attorney to obtain legal advice or services...Since this privilege is an 'obstacle' to the truth-finding process, it should be cautiously applied..." [527 NYS 2d 113, 115, 139 AD 2d 806 (1988)]. From my perspective, insofar as the report has been disclosed to a person other than the client, which is the Town Board, the attorney-client privilege could not be asserted. Therefore, to the extent that the report has been disclosed to the dentist, I do not believe that it would be privileged. Conversely, insofar as the report consists of a legal opinion or opinions that have not been disclosed to a person other than the client, in my view, the Town could properly withhold those portions of the report based on the assertion of the attorney-client privilege. It is also my view that the attorney-client privilege applies only to the extent that the communication involves the rendition of services that require the expertise of an attorney. For purposes of illustration, if an attorney is asked to provide a medical opinion or to describe the color of the sky, the responses would not involve the rendition of legal advice or expertise. Similarly, to the extent that the report involves matters that do not reflect the services of an attorney acting in his or her capacity as an attorney, I do not believe that the attorney-client privilege would be applicable as a basis for denial of access.
The other provision of significance, §87(2)(g) of the Freedom of Information Law, 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. I note further that the State's highest court, the Court of Appeals, recently analyzed §87(2)(g) and specified that those portions of inter-agency or intra-agency materials consisting of statistical or factual information must be disclosed, unless a different ground for denial applies [see Gould et al. v. New York City Police Department, ___ NY 2d ___, NYLJ, November 27, 1996].
As such, it is clear that a record may be accessible or deniable in whole or in part, depending upon its specific contents. In this instance, to the extent that the attorney-client privilege does not apply, I believe that the provisions of §87(2)(g) would be applicable. Again, under its standards, those aspects of the report consisting of advice or opinion could be withheld, but those portions consisting of statistical or factual information should in my view be disclosed.
I hope that I have been of assistance.
Robert J. Freeman
cc: Town Board