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December 20, 2023

Documents that are prepared within the meaning of the attorney-client privilege are exempt from disclosure pursuant to New York State's Freedom of Information Law

The Court of Appeals [Court] said that in this appeal it "must determine whether the Department of Corrections and Community Supervision [DOCCS] properly withheld 11 documents* prepared by counsel [Counsel] for the Board of Parole [Board] as privileged communications exempt from Freedom of Information Law [FOIL] disclosure.

The Court indicated that Counsel had prepared the documents to train and advise members of the Board on how to comply with their legal duties and obligations and reflected Counsel's legal analysis of statutory, regulatory and decisional law. The Court concluded that the 11 documents at issue "constitute attorney-client communications that were prepared 'for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship,' specifically, to provide guidance on matters relevant to the Commissioners' exercise of their discretionary authority."

Accordingly, opined the Court, "DOCCS properly invoked the statutory FOIL exemption for privileged matters", citing Public Officers Law §87[2][a] and CPLR §4503[a].

Following an in-camera review Supreme Court had earlier affirmed DOCCS' denial of disclosure of the 11 documents that were withheld and dismissed the petition.* 

The Appellate Division affirmed the Supreme Court's ruling in a 3-2 decision, concluding that the documents were protected by the attorney-client privilege**

The Court affirmed the lower courts' rulings.

Citing Public Officers Law §87[2][a] and Matter of Town of Waterford v New York State Dept. of Envtl. Conservation, 18 NY3d 652, the Court said that under New York State's FOIL, "documents are to be disclosed unless they fall within an enumerated statutory exemption" and, in the words of the Court, "the attorney-client privilege exemption also reflects the state's policy to protect attorney-client communications to foster candid discussion between lawyer and client*** and FOIL is "liberally construed and its exemptions narrowly interpreted" to achieve its legislative purpose of maximizing public access to government records." In addition, the Court, citing Matter of Town of Waterford, 18 NY3d at 657, indicated that the Government "bears the burden of establishing an exemption."

In sum, the Court held "DOCCS properly withheld the 11 documents relevant in this action as privileged communications because they are exempted from FOIL disclosure pursuant to §87(2)(a)" and "the order of the Appellate Division should be affirmed, with costs."

* During the pendency of this action, the Court of Appeals noted that the parties entered a settlement pursuant to which DOCCS disclosed approximately 400 additional documents, leaving undisclosed the 11 documents at issue in this appeal.

** The Court's decision notes "In order for the privilege to apply, the communication from attorney to client must be made 'for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship'" and "[t]he communication itself must be primarily or predominantly of a legal character" (See Spectrum Sys. Intl. Corp. v Chem Bank, 78 NY2d 371, 377-378, quoting Rossi, 73 NY2d at 593-594).

*** Other examples of such statutory exemptions: Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality.

Click HERE to access the decision of the Court of Appeals posted on the Internet.

 

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