Supreme Court, on remittal of the underlying decision by Court of Appeals to it, granted Plaintiff's petition brought pursuant to CPLR Article 78 seeking to compel production, pursuant to New York State's Freedom of Information Law (FOIL), of 22 records at issue that New York State's Office of Court Administration [OCA] had determined were exempt from disclosure because they consisted of encompass legal guidance on statutory and decisional law. The Appellate Division affirmed the Supreme Court's decision.
OCA's Counsel's Office declined to honor FOIL requests involving documents it had sent to judges of New York States Unified Court System (UCS) that encompass legal guidance on statutory and decisional law. In its argument before the Court of Appeals OCA pointed to a memorandum that had become publicly available interpreting the instant Appellate Division's decision in Crawford v Ally, 197 AD3d 27 (the Crawford Memorandum), and OCA had unsuccessfully argued, prior to conducting a search, that all similar memoranda would be categorically privileged, and therefore exempt from FOIL "by virtue of Counsel's Office's in-house relationship with UCS as its organizational client".
On remittal, OCA submitted 22 documents, similar to the Crawford Memorandum, for in camera review. Supreme Court held that they were not privileged and ordered them disclosed.
In the words of the Appellate Division, "On this record OCA has not demonstrated the existence of an attorney-client relationship between Counsel's Office and all UCS judges that would protect the submitted documents. OCA has provided no additional evidence or authority supporting its organizational client theory. Contrary to OCA's contention, the 22 documents alone do not prove the existence of an attorney-client relationship any more than did the Crawford Memorandum, which was before the Court of Appeals when it rejected OCA's privilege claim". In addition, citing Matter of NYCLU, 45 NY3d at 234, the Appellate Division observed that the OCA has not met its burden of demonstrating the privilege applies by reason of an "attorney-client relationship between Counsel's Office and all UCS judges acting in the acting in their deliberative capacities, beyond what was present in the prior record.
The Appellate Division observed that "OCA's policy arguments conflate attorney-client confidentiality with the distinct but equally important confidentiality of judicial deliberations, which flows not from an attorney-client relationship, but from a unique judicial privilege which the legislature recognized by removing the judiciary from FOIL's reach", citing Public Officers Law §§86[1], [c] and Matter of Newsday, Inc. v Empire State Dev. Corp., 98 NY2d 359", nor may OCA may not revive its arguments "relying on FOIL's inter- and intra-agency exemption, which OCA abandoned before the Court of Appeals".
Click HERE to access the Appellate Division's decision posted on the Internet.