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FOIL & Attorney Client Privilege

New York's Freedom of Information Law entitles persons to a great deal of record that are not subject to an exemption, such as one exempted by statute or, in this case, attorney client privilege. Freedom of Information Law, or FOIL, attorneys know the exemptions and what should and should not be produced.

Judge Lynch, concurring in part and dissenting in part, notes that:

The attorney-client privilege does not shield from disclosure every communication between an attorney and his or her client (see Matter of Priest v Hennessy, 51 NY2d 62, 69 [1980]). Rather, for the privilege to apply, the communication must be "confidential" (id. [internal quotation marks and citations omitted]; see Ambac Assur. Corp. v Countrywide Home Loans Inc., 27 NY3d 616, 623 [2016]), and made "for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship" (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377-378 [1991] [internal quotation marks and citation omitted]). As a general premise, the privilege is limited to "communications — not underlying facts" (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d at 377; see Niesig v Team I, 76 NY2d 363, 372 [1990]). That said, where an attorney's communication to a client "integrates the facts with the [attorney's] assessment of the client's legal position," the entire communication may be privileged (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d at 379-380; see Matter of Gilbert v Office of the Governor of the State of N.Y., 170 AD3d 1404, 1405-1406 [2019]).[1] Since the privilege creates an "obvious tension with the policy of this [s]tate favoring liberal discovery[,]. .. [and] constitutes an obstacle to the truth-finding process, it must be narrowly construed" (Ambac Assur. Corp. v Countrywide Home Loans Inc., 27 NY3d at 624 [internal quotation marks, brackets and citations omitted]).

This Third Department dissent from Judge Lynch discussed some of the records that should have been released under New York's Freedom of Information Law from the DOCCS (department of corrections) that makes, among other things, determinations about release and supervision:

consist of "training materials" prepared by counsel in conjunction with her responsibility to "provide legal counsel to the [Board of Parole] [c]ommissioners with respect to the statutory, regulatory, and decisional case law governing the conduct of parole hearings and the decision-making process."...duly codified statutory and regulatory duties in rendering parole determinations, without any fact-specific discussions or legal advice on how to apply the law to particular scenarios.... publicly-available information or factual data contained in such records.. "Board of Parole Interviews" — which is a checklist of materials to be brought to parole interviews, the factors that must be considered during the interviews and certain requirements that must be followed based upon whether an open date is granted or release is denied ..."Favorable Court Decisions" and "Unfavorable Court Decisions"...PowerPoint slides entitled "BOP Interviews and Decisions," "Parole Interviews and Decision-Making" and "Parole Interviews and Decision-Making Under Revised Regulations," and the handout entitled "Parole Interviews and Decision Making"

Joined with Judge Lynch was Judge Pritzker (concurring and dissenting in part) who found that the documents withheld were "more akin to templates or checklists provided to staff" and he would agree to their release. Judge Pritzker submitted that "Given that `the attorney-client privilege constitutes an obstacle to the truth-finding process,' its invocation `should be cautiously observed to ensure that its application is consistent with its purpose'" (Wrubleski v Mary Imogene Bassett Hosp., 163 AD3d 1248, 1251 [2018], quoting Matter of Priest v Hennessy, 51 NY2d 62, 68 [1980]). Agreeing, it seems, Judge Pritzker noted such withheld records are "similar to general training materials and, absent a further basis to withhold them, they would otherwise need to be disclosed in accordance with public policy." As Judge Lynch noted,

Indeed, the exemption does not apply to "objective information, in contrast to opinions, ideas or advice exchanged as part of the consultative or deliberative process of government decision[-]making" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 276-277 [1996]).

The case (of which we largely discuss the dissent) withholding these records over such dissent is MATTER OF APPELLATE ADVOCATES v. NEW YORK STATE DEPT. OF CORR. & COMMUNITY SUPERVISION, 2022 NY Slip Op 1354 - NY: Appellate Div., 3rd Dept., 2022. It looks like there is solid grounds for an appeal and who better to take such an appeal than a non for profit agency called Appellate Advocates!

Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)

Do you need legal services in obtaining information under the Public Officers Law, FOIL? Call 631-450-2515 or E-Mail to arrange for a flat-fee price quote. We work on a sliding scale, depending on the amount of the request and whether the request is in the public interest.


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