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An attorney?s advice sent by one layperson to another layperson not an attorney-client communication subject to a FOIL exception

An attorney?s advice sent by one layperson to another layperson not an attorney-client communication subject to a FOIL exception
Matter of Siani v Clark, 2009 NY Slip Op 50906(U), Decided on April 15, 2009, Supreme Court, Albany County, Justice Henry F. Zwack [This decision will not be published in the Official Reports]

Dominick J. Siani submitted a FOIL request to the State University of New York (SUNY) Records Access Officer to obtain "all e-mails, memoranda and correspondence . . . by the SUNY FOIL Appeals Officer in performing her official duties . . . for the period from May 1, 2008 to the date in which the records are provided."

The requested documents and records only related to FOIL appeals submitted by Siani. Although Siani extended the date for a response to the FOIL request, when no response was received, he initiated an appeal.*

Siani?s appeal was denied by letter and recited the inter/intra agency and attorney-client privilege exceptions permitted by FOIL as the basis for SUNY?s refusal to provide the documents and records he requested.

Justice Zwack, noting that ?It is well established that FOIL imposes a duty on the government to make its records available to the public and that there is a presumption that all records are subject to disclosure, unless they fall within a specific exemption from disclosure,? said that FOIL permits exemptions for attorney-client privileged documents and for documents that fall into certain categories of intra/inter-agency materials.**

Public Officers Law §87 provides that an agency may deny records or portions of records if they fall into specific categories, including:

(a) those that "are specifically exempted from disclosure by state or federal statute; and

(g) those 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."

Regarding the inter/intra-agency exemption claimed by SUNY, Justice Zwack said that case law has clarified that "factual data" is to be defined as "objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making."

Additionally, noted the court, just because a document may constitute a non-final determination does not mean that it may not be subject to disclosure as factual data.

As to SUNY?s claim that the attorney-client privilege exemption applied to certain documents, the court said that there are certain requirements for the privilege to apply that have been clarified by case law.

When there is a dispute as to whether a document falls into an exempt category, in camera [in private] inspection by the Court is an option. In this instance Justice Zwack considered the documents submitted to him for in camera review and found that some were not protected by the attorney-client privilege ?because they contain emails that are not between an attorney and client? although attorneys were ?copied on the emails.? Justice Zwack decided that such documents were not protected by FOIL's attorney-client communication exception.

Specifically, said the court, ?An attorney's advice being relayed by a non-attorney to another non-attorney does not meet the requirement for privileged attorney-client communication.?

As to Siani?s request for reimbursement of litigation costs totaling $394, as Siani acted pro se [represented himself] in this action, he could not be awarded attorney's fees.

However, Justice Zwack found that Siani had ?substantially prevailed in this proceeding? and that SUNY?s delay in providing the documents available under FOIL was both beyond the statutory limits and beyond the extra time voluntarily given it by Siani. Considering these elements, the Court awarded Siani costs, citing Public Officers Law §89(4) as authority for granting the award.

* Failure to respond to a FOIL request is deemed to constitute a constructive denial of the request.

** The basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited by statute, are available to the public. The custodian of the records or documents requested may elect, but is not required, to withhold those items that otherwise within the ambit of the several exceptions to disclosure permitted by FOIL.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_50906.htm

Full post as published by New York Public Personnel Law on May 15, 2009 (boomark / email).