February 19, 1997
Mr. Steven Blow
Records Access Officer
NYS Department of Public Service
Three Empire State Plaza
Albany, NY 12223-1350
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 Mr. Blow:
I have received your letter of January 24 in which you asked whether, in my view, certain "legal conclusions" that you reached concerning the status of certain records "are correct."
The records in question, which are or may become involved in litigation, have been sought by the Public Service Commission from the Niagara Mohawk Power Corporation (NMPC) pursuant to an order. You indicated that the NMPC considers the records to be "sensitive and confidential, at least while the investigation is still in progress", and that the staff of the Department of Public Service is reviewing records of the NMPC's retained counsel and is interviewing individuals who may be able to provide relevant information. You added that:
"NMPC will comply with our requirement to provide both sensitive and privileged materials, based on the interpretation of law, below, without waiving any attorney/client or other privilege it may have with respect to the information we are reviewing. The Company is, however, reluctant to provide copies of these materials because of the belief that the Freedom of Information Law might supersede any privilege, and/or the explicit understanding between the Company and Staff, to keep these materials confidential. Similarly, Staff's notes with respect to these materials and interviews might become accessible to 'any person' under the Public Officers Law (POL) Article 6."
In conjunction with the foregoing, you reached the following conclusions:
"1. Identifying details concerning employees and other individuals that are contained in records of interviews, or the like, may be deleted to protect against an unwarranted invasion of personal privacy, pursuant to POL §89(2).
2. The above-referenced inquiry, ordered by the PSC, involves the compilation of records for law enforcement purposes which, if disclosed, would interfere with law enforcement investigations, within the means of POL §87(2)(e)(i).
3. The attorney/client, attorney work product and materials prepared for litigation privileges are codified in New York in §3101(b)(d) of the Civil Practice Law and Rules. These subdivisions constitute exempting statutes within the meaning of POL §87(2)(a) and materials turned over to the Department by a regulated entity, reserving the privilege, if in fact privileged, are exempt from disclosure."
In this regard, it is emphasized that I know nothing of the specific nature of the investigation or the contents of the records at issue. Consequently, the following remarks should be considered as general in character.
As you are aware, 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.
Section 87(2)(b) permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." Further, as §89(2) permits agencies to delete identifying details from records to protect against such invasions of privacy and includes examples of unwarranted invasions of personal privacy. From my perspective and based upon judicial interpretations, §87(2)(b) is intended to pertain to natural persons, not entities or persons acting in business capacities. In a decision rendered by the of Appeals that focuses upon the privacy provisions, the Court referred to the authority to withhold "certain personal information about private citizens" [see Matter of Federation of New York State Rifle and Pistol Clubs, Inc. v. The New York City Police Department, 73 NY 2d 92 (1989)]. In a decision involving a request for a list of names and addresses, the opinion of this office was cited and confirmed, and the court held that "the names and business addresses of individuals or entities engaged in animal farming for profit do not constitute information of a private nature, and this conclusion is not changed by the fact that a person's business address may also be the address of his or her residence" [American Society for the Prevention of Cruelty to Animals v. New York State Department of Agriculture and Markets, Supreme Court, Albany County, May 10, 1989). More recently, in a case concerning records pertaining to the performance of individual cardiac surgeons, the court granted access and cited an opinion prepared by this office in which it was advised that the information should be disclosed since it concerned professional activity licensed by the state (Newsday Inc. v. New York State Department of Health, Supreme Court, Albany County, October 15, 1991). In short, to the extent that the records at issue relate to persons in professional or business capacities, it does not appear that the provisions pertaining to privacy would apply.
However, insofar as the records involve other aspects of records pertaining to nature persons, depending on their nature, it is possible that names or other details could properly be withheld. Since you referred to an investigation, if, for example, an individual is the subject of an investigation that has not been completed or allegations of misconduct that have not been substantiated, a denial of access to records pertaining to the individual in those contexts may be appropriate.
The second basis for denial, §87(2)(e)(i), authorizes an agency to withhold records compiled for law enforcement purposes to the extent that disclosure would interfere with an investigation or judicial proceedings. While the Public Service Commission is not a criminal law enforcement agency, it has been advised that agencies that are empowered to engage in law enforcement functions may in appropriate circumstances assert the cited provision as a basis for denial of access to records. I note that the language of §87(2)(e)(i) is limited, in that it enables an agency to withhold certain records when disclosure would result in identifiable harm or impairment of an agency's ability to carry out its duties effectively. Further, while records may be used in or relate to an investigation, if they were prepared in the ordinary course of business, §87(2)(e) would likely not serve as a basis for denial.
I point out that notes and other records that may be or have been prepared by the Commission or Department staff in relation to the investigation would fall within the scope of a potential basis for denial that was not cited in your letter. Specifically, §87(2)(g) 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.
The remaining basis for denial is based on a claim of confidentiality or privilege. In this regard, I note that a promise or assertion of confidentiality, unless it is based upon a statute, is likely meaningless. When confidentiality is conferred by a statute, an act of the State Legislature or Congress, records fall outside the scope of rights of access pursuant to §87(2)(a) of the Freedom of Information Law, which, again, states that an agency may withhold records that "are specifically exempted from disclosure by state or federal statute". If there is no statute upon which an agency can rely to characterize records as "confidential" or "exempted from disclosure", the records are subject to whatever rights of access exist under the Freedom of Information Law [see Doolan v.BOCES, 48 NY 2d 341 (1979); Washington Post v. Insurance Department, 61 NY 2d 557 (1984); Gannett News Service, Inc. v. State Office of Alcoholism and Substance Abuse, 415 NYS 2d 780 (1979)]. In this instance, however, the assertion of confidentiality is based on statutes and judicial interpretations. Relevant is 87(2)(a), which pertains to records that "are specifically exempted from disclosure by state or federal statute." Among those statutes that exempt records from disclosure are §§4503 and 3101(c) and (d) of the Civil Practice Law and Rules (CPLR), which deal, respectively with the attorney-client privilege, materials prepared for litigation, and attorney work product. Assuming that the provisions of the CPLR cited earlier could properly be asserted by NMPC when the records in question are in its possession and control, I believe that those provisions would exempt the records from disclosure, in the circumstances that you described, if and when they come into the possession of the Commission or the Department.
In general, when privileged material is disclosed to a third party, the privilege is waived. Nevertheless, there are several judicial decisions, both state and federal, in which it has been held that privileged materials remain confidential when an entity is compelled to disclose them to a governmental agency and the entity specifies its intent to preserve this privilege.
The only situation of which I am aware in which the Freedom of Information Law was directly pertinent involved a decision to which you referred concerning the Public Service Commission. In that case, North Star Contracting Corp. v. Department of Public Service (Supreme Court, Albany County, April 24, 1985), the petitioner requested records from the agency under the Freedom of Information Law that had been submitted to the agency by the Consolidated Edison Company "in response to an inquiry by the Department." Following an in camera review of the records and a finding that they consisted of material prepared for litigation and were, therefore, properly characterized as privileged, it was held that "the exemption accorded such privileged documents was not waived by Con Ed when it responded to the direction of the Public Service Commission that it should submit its comments and copies of any technical analysis...This is true particularly in light of the fact that Con Ed had specifically reserved its privilege when it submitted such documents pursuant to a directive of the Commission."
Critical in my view is NMPC's effort to preserve the privilege. In an Appellate Division decision, it was held that: "Defendant waived any privilege that may have attached to its file when it turned over to plaintiff's criminal defense attorney and to the Grand Jury without specifically reserving its right to claim the privilege in subsequent proceedings..." [Ferraraccio v. Hartford Insurance Company, 187 AD 2d 954, 955 (1992)]. In another New York State court decision, it was held that:
"Several Federal courts have held that the involuntary disclosure of privileged documents to a government agency does not waive the privilege. (See. e.g., Osterneck v Barwick Inds., 82 FRD 81.83 Chase's production and disclosure, however, was voluntary, that is, it did not seek to prevent the production by asserting the privilege. Moreover, documents protected by the attorney-client privilege have been voluntarily produced to a governmental agency on the condition that the privilege will be maintained in subsequent proceedings, and in those cases courts have held that, under the circumstances, the privilege was not waived. (See. e.g., Teachers Ins. & Annuity Assn. v Shamrock Broadcasting Co., 521 F Supp 638; Schnell v Schnall. 550 F Supp 650, 653. However, unless the right to assert the attorney-client privilege in subsequent proceedings is specifically reserved at the time disclosure is made to a governmental agency, that disclosure is held to be complete waiver of that privilege. (See Teachers Ins. & Annuity Assn. v Shamrock Broadcasting Co., supra, at pp 644-645). Chase, by its own admission, made no reservation of the attorney-client privilege at the time it produced these documents, and thus it has waived that privilege with respect to the documents disclosed...a mere hope or expectation that the District Attorney was an ally and not an adversary does not convert the relationship into a 'community of interest'..." [People v. Calandra, 120 Misc. 2d 1059, 1060-1061 (1993).
Similarly, federal courts in the other contexts have found that "de facto compulsion" does not result in the waiver of a privilege that might otherwise be asserted [see e.g., Niagara Mohawk Power Corporation v. Stone & Webster Engineering Corporation, 125 F.R.D. 578 (1989); Transamerica Computer Company v. International Business Machines, 573 F.2d 646 (1978)].
In sum, insofar as NMPC could properly claim privileges under the CPLR concerning its records, I believe that they would continue to be privileged and, therefore, exempted from disclosure under the Freedom of Information Law due to the Commission's order and NMPC's attempt to preserve the privilege. With respect to the claims relative to §§87(2)(e) and 89(2)(b) of the Freedom of Information Law, their propriety would be dependent upon the specific contents of the records and the effects of their disclosure.
I hope that I have been of assistance. If you would like to discuss the matter, please feel free to contact me.
Robert J. Freeman