July 18, 2007
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.
I have received your letter concerning the status of a certain report under the Freedom of Information Law, as well as the report itself.
By way of background, you wrote that the Board of Trustees of the Village of Tuxedo Park was informed more than a year ago by representatives of the Office of the Orange County District Attorney that it was investigating the then Chief of Police and two part-time police officers who might have claimed compensation for work they did not perform. The Chief has since retired, and the two others are no longer employed by the Village. The Board retained a forensic accountant to review Village records to “establish the scope and extent of the possible fraudulent activities of these individuals.” You wrote that firm was retained and that a report “was obtained through the attorney for the Village in order that the Village might invoke the ‘attorney-client privilege’, at least during the preparation of various drafts which led up to the final report.” You indicated that the attorney for the Village expressed the view that there is no valid reason for invoking the attorney-client privilege, and you introduced a resolution to authorize release of the report upon receipt of a request made pursuant to the Freedom of Information Law. The resolution was defeated by a vote of 3 to 2, and the Village has received several requests for the report.
In this regard, it is emphasized at the outset that this office is authorized to offer advisory opinions concerning the Freedom of Information Law. Although I have reviewed the report, I am not a judge, and the Committee on Open Government does not possess judicial or quasi-judicial authority. However, having read the report, I offer the following comments, which are advisory in nature.
First, at the top of the first page of the report are the phrases: “Attorney Client Privileged” and “Attorney Work Product.” It appears that they are printed on the firm’s letterhead and were not added as an admonition or description of the content of this particular report. Notwithstanding those phrases, I do not believe that report falls within the attorney-client privilege or that it constitutes attorney work product. Rather, it is more akin in my opinion to an audit pertaining to the operation and functioning of a particular entity within the Village and its fiscal practices and accountability. Moreover, based on several judicial decisions, an assertion, a request for, or a promise of confidentiality, unless it is based upon a statute, is generally 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 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)]. As such, the printed statements involving attorney-client privilege and attorney work product appearing on the first page of the report, without more, would not in my view serve to enable the Village to withhold the report.
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 (j) of the Law. As suggested above, the first ground for denial, §87(2)(a), pertains to records that “are specifically exempted from disclosure by state or federal statute.” One such statute is §4503 of the Civil Practice Law and Rules (CPLR), which codifies the attorney-client privilege. Another is §3101(c) of the CPLR concerning attorney work product. Section 3101 pertains disclosure in a context related to litigation, and subdivision (a) reflects the general principle that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action..." It is intended to shield from an adversary records that would result in a strategic advantage or disadvantage, as the case may be. In a decision in which it was determined that records could justifiably be withheld as attorney work product, the "disputed documents" were "clearly work product documents which contain the opinions, reflections and thought process of partners and associates" of a law firm "which have not been communicated or shown to individuals outside of that law firm" [Estate of Johnson, 538 NYS 2d 173 (1989)]. It does not appear that the report at issue relates to litigation or that the intent of §3101(c) is pertinent in the context of your inquiry.
In another decision, the relationship between the attorney-privilege and the ability to withhold the work product of an attorney was discussed, and it was found that:
"The attorney-client privilege requires some showing that the subject information was disclosed in a confidential communication to an attorney for the purpose of obtaining legal advice (Matter of Priest v. Hennessy, 51 N.Y.2d 62, 68-69, 431 N.Y.S.2d 511, 409 N.E.2d 983). The work-product privilege requires an attorney affidavit showing that the information was generated by an attorney for the purpose of litigation (see, Warren v. New York City Tr. Auth., 34 A.D.2d 749, 310 N.Y.S.2d 277). The burden of satisfying each element of the privilege falls on the party asserting it (Priest v. Hennessy, supra, 51 N.Y.2d at 69, 431 N.Y.S. 2d 511, 409 N.E.2d 983), and conclusory assertions will not suffice (Witt v. Triangle Steel Prods. Corp., 103 A.D.2d 742, 477 N.Y.S.2d 210)" [Coastal Oil New York, Inc. v. Peck, [184 AD 2d 241 (1992)].
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)].
In short, based on the foregoing and in consideration of the nature of the content of the report, I do not believe that it could be characterized as attorney work product. Further, since it serves as a barrier to disclosure, it is emphasized that the courts have narrowly construed the exemption concerning attorney work product. It has been held that only the work product that involves the learning and professional skills possessed only by an attorney is exempt from disclosure [see Soper v. Wilkinson Match, 176 Ad2d 1025 (1991); Hoffman v. Ro-San Manor, 73 AD2d 207 (1980)]. Because the contents of the report do not reflect the specialized skill that can be offered only by an attorney, I do not believe that the report can be withheld based on a contention that it consists of attorney work product. Similarly, based on its content, I do not believe that the report constitutes an attorney-client communication that falls within the scope of the privilege. That being so, rights of access to the report should be determined on the basis of the Freedom of Information Law.
In my view, one of the exceptions to rights of access is most pertinent to an analysis of rights of access. However, due to its structure, that provision often requires substantial disclosure, and I believe that to be so in this instance.
Specifically, §87(2)(g) states that an agency may 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 records prepared by consultants for agencies, the Court of Appeals, the State’s highest court, 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, records 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[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.
I note that in a case that reached the Court of Appeals, one of the contentions was that certain reports could be withheld because they were not final and because they related to incidents for which no final determination had been made. The Court rejected that finding and stated that:
"...we note that one court has suggested that complaint follow-up reports are exempt from disclosure because they constitute nonfinal intra-agency material, irrespective of whether the information contained in the reports is 'factual data' (see, Matter of Scott v. Chief Medical Examiner, 179 AD2d 443, 444, supra [citing Public Officers Law §87[g]). However, under a plain reading of §87(2)(g), the exemption for intra-agency material does not apply as long as the material falls within any one of the provision's four enumerated exceptions. Thus, intra-agency documents that contain 'statistical or factual tabulations or data' are subject to FOIL disclosure, whether or not embodied in a final agency policy or determination (see, Matter of Farbman & Sons v. New York City Health & Hosp. Corp., 62 NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d 577)..." [Gould et al. v. New York City Police Department, 87 NY2d 267, 276 (1996)].
The Court also dealt with the issue of what constitutes "factual data" that must be disclosed under §87(2)(g)(i). In its consideration of the matter, the Court found that:
"...Although the term 'factual data' is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549]). Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of 'statistical or factual tabulations or data' (Public Officers Law 87[g][I]. Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182).
"Against this backdrop, we conclude that the complaint follow-up reports contain substantial factual information available pursuant to the provisions of FOIL. Sections of the report are devoted to such purely factual data as: the names, addresses, and physical descriptions of crime victims, witnesses, and perpetrators; a checklist that indicates whether the victims and witnesses have been interviewed and shown photos, whether crime scenes have been photographed and dusted for fingerprints, and whether neighborhood residents have been canvassed for information; and a blank space denominated 'details' in which the officer records the particulars of any action taken in connection with the investigation" (id., 276-277)."
As I view the report, most of it consists of factual information, final determinations or Village policy that must be disclosed. The portions that might justifiably be redacted prior to disclosure of the remainder involve those passages indicating that “it appears” or that “it does not appear”, for those phrases reflect opinions. In addition, section IV. of the report entitled “Recommendations” may in my view be withheld.
Lastly, I point out that the Freedom of Information Law is permissive. While an agency may choose to withhold records or portions of records falling within the exceptions to rights of access, the Court of Appeals has held that it is not required to do so [Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)].
I hope that I have been of assistance.
Robert J. Freeman
cc: James Roemer