April 06, 2018

An autopsy of a Freedom of Information request


An autopsy of a Freedom of Information request
Gartner v New York State Attorney General's Off., 2018 NY Slip Op 02381, Appellate Division, Third Department


New York State's Freedom of Information Law [FOIL] is based on the concept that all government records and document should be available to the public except where such disclosure is prohibited by law.* Indeed, there is no bar to providing information pursuant to a FOIL request, or otherwise, that could be denied pursuant to one or more of the exceptions set out in FOIL that the custodian could rely upon in denying a FOIL request, in whole or in part. 

Further, a formal FOIL request is not required as a condition precedent to obtaining public documents or records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a formal FOIL request to obtain the desired information or records. 

Barbara Gartnersubmitted a Freedom of Information [FOIL] request to the Office of the New York State Attorney General [OAG] seeking certain information.. The OAG told Ms. Gartner that it had located 505 pages that were responsive to her FOIL request and specified the cost and method of obtaining those documents.

Ms. Gartner sent a check in the amount specified but OAG then informed her that "due to a change in circumstances" in related litigation "the 505 pages that were identified for disclosure were now being withheld as exempt." In response to her administrative appeal challenging this decision, it was determined that Ms. Gartner was entitled to the 195 pages of documents that were already publicly available on the Attorney General's website and five pages of partial redacted documents but  OAG could withhold the remaining pages.*

A few months later, following resolution of the relevant litigation, Ms. Gartner resubmitted her FOIL request. OAG denied the request, concluding that all documents were exempt. Following the denial of her administrative appeal of this decision, Ms. Gartner initiated a CPLR Article 78 proceeding challenging that denial. The parties negotiated a settlement in which Ms. Gartner agreed to withdraw her petition without prejudice in exchange for the disclosure of 305 of the 310 pages that were not already publicly available. As part of the settlement, the Attorney General's Office confirmed that the 505 pages that had previously been identified as responsive represented "the entire universe of documents that respond to the subject FOIL request."

Ms. Gartner reviewed the 305 pages she had received and then realized that they referenced other documents that she had not received. She then commenced this second CPLR Article 78 proceeding seeking an order compelling OAG to conduct a diligent search for responsive documents, permitting her or an independent third party to examine the files maintained by OAG to determine whether they provided all of the responsive documents, compelling OAG to disclose all records withheld or redacted or submit them for an in camera review by the court, and awarding her counsel fees.

OAG then voluntarily supplied unredacted copies of all pages that had previously been disclosed and the remaining five pages of the original 505 pages and subsequently provided Ms. Gartner with 56 additional pages. OAG then provided the court with 949 additional pages that they withheld based on claimed exemptions for intra-agency materials, inter-agency materials and attorney work product for its review in camera together with an affidavit listing which exemption applied to each group of pages.

Supreme Court concluded that the 949 pages were properly withheld under the stated exemptions, but awarded Ms. Gartner  counsel fees based on the way that OAG "had handled the FOIL request." Ms. Gartner appealed the court's decision.
Addressing Ms. Gartner contentions that OAG "must be ordered to conduct a further diligent search for responsive records, provide a new certification of a diligent search and/or allow petitioner or an independent party to conduct such a search" the Appellate Division said:

1. "When faced with a FOIL request, an agency must either disclose the record sought, deny the request and claim a specific exemption to disclosure, or certify that it does not possess the requested document and that it could not be located after a diligent search".

2. Supreme Court did not err in determining that OAG had conducted and certified a diligent search, as required.

3. There is no legal authority to allow a petitioner or independent third party to conduct a search of an agency's records to locate responsive documents and such a search would be improper because it would inevitably permit the person to view agency records that were not responsive or that were exempt from disclosure.

As to the propriety of OAG withholding of document, FOIL presumes that government documents are available for inspection and copying unless they are statutorily exempt by Public Officers Law §87(2). The Appellate Division then addressed the authority of the custodian of the documents demanded to withholding them, noting that the agency resisting disclosure under FOIL bears the burden of showing that the responsive document "falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access.

With respect to OAG's reliance on the exemptions for intra-agency and inter-agency materials and attorney work product the court explained that "An exemption from FOIL disclosure exists for intra-agency and inter-agency materials, but there are exceptions — meaning that disclosure is permitted — if the document consists of, among other things, 'statistical or factual tabulations or data' [and] Factual data . . . simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making."

Upon the Appellate Division's in camerainspection of the documents, it concluded that "most of the pages alleged to be intra-agency materials are exempt because they contain ideas or opinions exchanged between employees of the Attorney General's Office." However, continued the Appellate Division "the documents on pages 1 and 286 contain factual information without any opinion, rendering them nonexempt" while certain other documents are not exempt because they deal with the scheduling of meetings, rather than any deliberative process."

OAG also claimed that FOIL exempts intra-agency materials applies to inter-agency materials and communications shared between different government agencies to assist a decision maker in one agency in reaching a determination, the communications between the OAG and counsel for another State Agency. Pointing out that OAG and agency counsel were "not interacting with the Attorney General's Office in that capacity," nor was it assisting the government entity but rather OAG was more akin to a separate party to the litigation than an advisor to the government entity.

The court then ruled that considering these circumstances and the positions of the parties in these interactions, the inter-agency exemption does not apply and will not preclude disclosure of communications between these entities and thus the documents OAG alleged fell within this FOIL exemption are subject to disclosure.

With respect to OAG's arguments found on its assertion that numerous documents are exempt from disclosure because they represent attorney work product the court agreed that Public Officers Law §87(2)(a) exempts from FOIL disclosure any materials "specifically exempted from disclosure by state or federal statute" privileged communications between attorneys and their clients exchanged in the course of obtaining legal advice or services. However, observed the Appellate Division, not every word written by a lawyer "enjoys the absolute immunity of work product" and "the exemption should be limited to those materials which are uniquely the product of a lawyer's learning and professional skills, such as materials which reflect his or her legal research, analysis, conclusions, legal theory or strategy."

Nor may OAG claim the attorney work product privilege for work done by a private law firm on behalf of a non-government client which documents were then sent to the OAG as the confidentiality and the related privilege is waived by intentionally sending the documents to a third party.

The Appellate Division concluded that OAG had failed to meet its burden of establishing that the relevant pages — "drafts of legal documents and the letters and emails sent to and from counsel for any party to the various court proceedings" and Ms. Gartner is entitled to disclosure of those pages. In contrast, said the court, "the handwritten notes prepared by an Assistant Attorney General, and apparently never shared with anyone outside that office, are exempt as attorney work product."

* Education Law, §1127 - [Confidentiality of records] and §33.13, Mental Hygiene Law [Clinical records; confidentiality] are examples of such statutory prohibitions. 

The decision is posted on the Internet at:


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