November 4, 1996
Nicholas J. Sargent, P.C.
Attorneys and Counsellors at Law
1300 Key Tower
50 Fountain Plaza
Buffalo, NY 14202-2270
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. Sargent:
As you are aware, I have received your letter of October 31. You have sought my views in your capacity as attorney for the Barker Central School District and its Board of Education concerning its ability or obligation to disclose a certain report.
By way of background, you wrote that the Board:
"hired an attorney to investigate allegations of administrators requesting teachers to erase incorrect answers on the District's third grade PEP test. The attorney's investigative report identified several students, witnesses and teachers by name. In addition, attached to the report were several exhibits. The Board of Education requested our opinion whether the report was subject to a FOIL request. We rendered an opinion that the final report was not subject to the disclosure requirement of FOIL..."
It is your view that the report in question consists of intra-agency material and that it falls within the scope of the attorney-client privilege, and that it may be withheld in conjunction with either of those claims.
Nevertheless, the Board recently adopted a resolution expressing its desire to release the report: "with names redacted pending [my] opinion whether a redacted report would results in the release of (a) childrens' names, (b) witnesses' names, (c) teachers' names, (d) exhibits or (e) none, all or part of the foregoing..." It is my understanding based upon conversations with you and others that the Superintendent has tendered his resignation and that the names of those who are the subject of the investigation or charges have been made known to the public.
From my perspective, the Board has the following options:
(1) if the report falls within the scope of the attorney-client privilege, it may be withheld in its entirety;
(2) the Board may waive the privilege and disclose the report, except to the extent that it includes personally identifiable information pertaining to students;
(3) the Board may waive the privilege and withhold personally identifiable information regarding students, as well as others insofar as disclosure would constitute "an unwarranted invasion of personal privacy"; or
(4) if the attorney-client privilege does not apply, the report could be withheld insofar as it consists of opinions or recommendations and personally identifying details the disclosure of which would consist of an unwarranted invasion of personal privacy, and it must withhold personally identifiable information pertaining to students.
In this regard, I offer the following analysis of the matter.
First, 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.
Second, although the District could in my opinion withhold the report in great measure or perhaps in its entirety, I point out that the Freedom of Information Law is permissive. In other words, with one exception, an agency has the discretionary authority to disclose records, even though the records or portions thereof fall within the grounds for denial referenced above [see Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)].
The one exception under which an agency would not have the authority to disclose would involve a case in which a statute forbids disclosure. The first ground for denial, §87(2)(a), deals with that kind of situation, for it relates to records that "are specifically exempted from disclosure by state or federal statute." One such statute, the federal Family Educational Rights and Privacy Act ("FERPA"; 20 U.S.C. §1232g), generally requires that "education records" identifiable to students be kept confidential with respect to the public. The regulations promulgated by the U.S. Department of Education define the phrase "education records" (34 CFR 99.3) to mean:
"those records that are - (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution."
Further, the federal regulations promulgated under the FERPA define the phrase "personally identifiable information" to include:
"(a) The student's name; (b) The name of the student's parents or other family member; (c) The address of the student or student's family; (d) A personal identifier, such as the student's social security number or student number; (e) A list of personal characteristics that would make the student's identity easily traceable; or (f) Other information that would make the student's identity easily traceable" (34 CFR Section 99.3).
Based upon the definition of "personally identifiable information", portions of records must be kept confidential if they pertain to a student or to a student's parent, for the disclosure of the parent's name would identify the student.
I note that the regulations exclude from the scope of education records:
"Records relating to an individual who is employed by an educational agency or institution, that - (A) Are made and maintained in the normal course of business..."
Nevertheless, in my opinion, records prepared in conjunction with an investigation of a staff member or a proceeding conducted pursuant to §3020-a of the Education Law would not have been made and maintained in the ordinary course of business. If that is so, to the extent that the records in question are identifiable to particular students, I believe that they would constitute education records that are specifically exempted from disclosure by means of a federal statute, the FERPA. Therefore, insofar as the records at issue include information identifiable to students, I believe that those portions must be withheld in order to comply with federal law, unless a parent of a student consents to disclosure.
Section 87(2)(a) also is pertinent with respect to the attorney-client privilege. For nearly a century, the courts have found that legal advice given by a municipal attorney to his or her clients, municipal officials, is privileged when it is prepared in conjunction with an attorney-client relationship [see e.d., People ex rel. Updyke v. Gilon, 9 NYS 243, 244 (1989); Pennock v. Lane, 231 NYS 2d 897, 898, (1962); Bernkrant v. City Rent and Rehabilitation Administration, 242 NYS 2d 752 (1963), aff'd 17 App. Div. 2d 392]. As such, I believe that a municipal attorney may engage in a privileged relationship with his client and that records prepared in conjunction with an attorney-client relationship are considered privileged under §4503 of the Civil Practice Law and Rules. Further, since the enactment of the Freedom of Information Law, it has also been found that records may be withheld when the privilege can appropriately be asserted when the attorney-client privilege is read in conjunction with §87(2)(a) of the Law [see e.g., Mid-Boro Medical Group v. New York City Department of Finance, Sup. Ct., Bronx Cty., NYLJ, December 7, 1979; Steele v. NYS Department of Health, 464 NY 2d 925 (1983)]. Similarly, material prepared for litigation may be confidential under §3101 of the Civil Practice Law and Rules.
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)].
If indeed the report prepared by the attorney for the District falls within the scope of the attorney-client privilege, I believe that the Board could withhold it. However, the Board, as the client, would have the discretionary authority to waive the privilege. As such, the Board could choose to disclose the entire report, again, with the exception of those portions that are personally identifiable to students.
Also pertinent is §87(2)(b), which authorizes an agency to withhold records to the extent that disclosure would result in "an unwarranted invasion of personal privacy." Even if FERPA is inapplicable, I believe that disclosure of those portions of the records identifiable to students could be withheld on the basis of §87(2)(b).
That provision might also apply with respect to others named or identified in the records. For instance, you referred to witnesses and teachers. It is not entirely clear who the witnesses might be or what the involvement of teachers might have been. I note, however, that the standard concerning privacy is flexible and may be subject to conflicting interpretations, the courts have provided substantial direction regarding the privacy of public employees. It is clear that public employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that public employees are required to be more accountable than others, and the courts have found that, as a general rule, records that are relevant to the performance of a public employee's 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].
Several of the decisions cited above, for example, Farrell, Sinicropi, Geneva Printing, Scaccia and Powhida, dealt with situations in which determinations indicating the imposition of some sort of disciplinary action pertaining to particular public employees were found to be available. However, when allegations or charges of misconduct have not yet been determined or did not result in disciplinary action, the records relating to such allegations or unsubstantiated charges following a private hearing may, in my view, be withheld, for disclosure would result in an unwarranted invasion of personal privacy [see e.g., Herald Company v. School District of City of Syracuse, 430 NYS 2d 460 (1980)].
In the context of the situation at issue, while the names of those under investigation or charged may ordinarily be withheld, in view of the disclosures that have already occurred, it would appear that the Board could choose to disclose the identities of those persons and other staff members named in the report.
Lastly, notwithstanding the likelihood that the report falls within the coverage of the attorney-client privilege, it is assumed that the report in question was prepared by an attorney acting as a consultant. 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. Again, to the extent that the report consists of advice, opinions or recommendations offered by the attorney, the Board could withhold it. Nevertheless, for reasons described earlier, the Board could choose to disclose those elements of the report due to the permissive nature of the Freedom of Information Law.
In sum, based upon my understanding of the matter, the Board would have the authority to disclose the report in its entirety, except to the extent that it includes personally identifiable information pertaining to students.
I hope that I have been of assistance.
Robert J. Freeman