Appellate Advocates v. N.Y.S. Dep't of Corr. & Cmty. Supervision
| Decision Date | 03 March 2022 |
| Docket Number | 531737 |
| Citation | 203 A.D.3d 1244,163 N.Y.S.3d 314 |
| Parties | In the Matter of APPELLATE ADVOCATES, Appellant, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Lincoln Square Legal Services, Inc., New York City (Ron Lazebnik of counsel), for appellant.
Letitia James, Attorney General, Albany (Frank Brady of counsel), for respondent.
Civil Rights and Transparency Clinic, Buffalo (Michael F. Higgins of counsel), for Reinvent Albany and another, amici curiae.
Before: Egan Jr., J.P. (vouched in), Lynch, Aarons, Pritzker and Reynolds Fitzgerald, JJ.
Appeal from a judgment of the Supreme Court (Ryba, J.), entered June 26, 2020 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent partially denying petitioner's Freedom of Information Law request.
Petitioner made a request under the Freedom of Information Law (see Public Officer Law art 6) seeking documentation related to how the Board of Parole determined applications for parole release. As relevant here, petitioner sought from respondent "[a]ny and all records, documents, and files referencing or relating to Board of Parole training, including but not limited to training policies, procedures, manuals, handbooks, and outlines received or created by Board of Parole commissioners, their employees, staff members, and agents." In response, respondent provided some training materials but also withheld certain documents as protected by the attorney-client privilege. Petitioner administratively appealed and respondent, in support of withholding documents from disclosure, argued that the sought documents were protected as attorney-client communications. Respondent also relied on the intra-agency exemption. After the administrative appeal was denied, petitioner commenced this CPLR article 78 proceeding seeking full compliance with its Freedom of Information Law request. Before respondent joined issue, the parties reached a settlement as to the disclosure of some documents. Respondent then answered and submitted 11 documents to Supreme Court for an in camera review, along with a privilege log. Following the review, the court found that these 11 documents were exempt from disclosure. Petitioner appeals.
Petitioner argues that Supreme Court erred in determining that the documents at issue were exempt from disclosure under the attorney-client privilege. Having reviewed the documents that were submitted in camera, we disagree. "[T]he attorney-client privilege protects communications between an attorney and his or her client that convey facts relevant to a legal issue under consideration, even if the information contained in the communication is not privileged" ( Matter of Gilbert v. Office of the Governor of the State of N.Y., 170 A.D.3d 1404, 1405–1406, 96 N.Y.S.3d 724 [2019] ). Regarding the minor offenders memoranda, these documents, as noted in the affirmation of the Board's counsel, were created by counsel and contain legal advice to the Board regarding the state of law and how the Board should conduct interviews in accord with such law. The court-decisions handouts likewise provide counsel's summary, view and impression of recent case law to the Board. Similarly, the presentation slides and the parole interviews and decision-making handout discuss various legal standards and regulations and, as the Board's counsel noted, were provided to the Board so it could understand the requirements imposed by them and how it can comply with them. As to the remaining documents – handouts concerning Board interviews, sample decision language concerning departure from COMPAS and hypothetical Board decisions – they also involve legal advice as to how to reach decisions on parole matters so as to be in compliance with applicable regulations.
Because the record reflects that the sought documents were 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 N.Y.2d 371, 378, 575 N.Y.S.2d 809, 581 N.E.2d 1055 [1991], quoting Rossi v. Blue Cross & Blue Shield of Greater N.Y., 73 N.Y.2d 588, 593, 542 N.Y.S.2d 508, 540 N.E.2d 703 [1989] ), Supreme Court did not err in finding that they were exempt from disclosure under the attorney-client privilege (see Matter of Gilbert v. Office of the Governor of the State of N.Y., 170 A.D.3d at 1405–1406, 96 N.Y.S.3d 724 ; Matter of Shooters Comm. on Political Educ. Inc. v. Cuomo, 147 A.D.3d 1244, 1246, 47 N.Y.S.3d 512 [2017] ). In view of our determination, petitioner's remaining assertions are academic.
I agree with the majority that the two "Minor Offenders" memoranda, as well as the documents entitled "Sample Decision Language Concerning Departure from COMPAS" and "Hypothetical Board Decisions," as set forth on the privilege log, are exempt from disclosure under the attorney-client privilege. I respectfully dissent from so much of the majority decision as pertains to the remaining documents and would find either that they should be released in their entirety under petitioner's Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]) request or released with potential redactions for confidential or exempt material.
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 N.Y.2d 62, 69, 431 N.Y.S.2d 511, 409 N.E.2d 983 [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 N.Y.3d 616, 623, 36 N.Y.S.3d 838, 57 N.E.3d 30 [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 N.Y.2d 371, 377–378, 575 N.Y.S.2d 809, 581 N.E.2d 1055 [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 N.Y.2d at 377, 575 N.Y.S.2d 809, 581 N.E.2d 1055 ; see Niesig v. Team I, 76 N.Y.2d 363, 372, 559 N.Y.S.2d 493, 558 N.E.2d 1030 [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 N.Y.2d at 379–380, 575 N.Y.S.2d 809, 581 N.E.2d 1055 ; see Matter of Gilbert v. Office of the Governor of the State of N.Y., 170 A.D.3d 1404, 1405–1406, 96 N.Y.S.3d 724 [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 N.Y.3d at 624, 36 N.Y.S.3d 838, 57 N.E.3d 30 [internal quotation marks, brackets and citations omitted]).
As characterized by respondent's attorney in her affidavit submitted with the privilege log, the withheld documents 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." Consistent with that defined role, many of the documents contain sections that are devoted solely to informing the Board of Parole of its 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. Although these documents were prepared by attorneys in the course of a professional relationship, the general legal principles outlined therein are not confidential (see Amadei v. Nielsen, 2019 WL 8165492, *8, 2019 U.S. Dist LEXIS 228817 [E.D.N.Y., Apr. 17, 2019, No. 17–CV–5967 (NGG/VMS)] []; American Immigration Council v. U.S. Dept. of Homeland Sec., 905 F. Supp. 2d 206, 222–223 [D.D.C. 2012] []; Hartford Life Ins. Co. v. Bank of America Corp., 2007 WL 2398824, *6, 2007 U.S. Dist LEXIS 61668 [S.D.N.Y., Aug. 21, 2007, No. 06–Civ–3805 (LAK/HBP)] []; compare Valassis Communications, Inc. v. News Corporation, 2018 WL 4489285, *3–4, 2018 U.S. Dist LEXIS 160234 [S.D.N.Y., Sept. 19, 2018, 17–CV–7378 (PKC)] []).2
Nor, in my view, would FOIL's intra-agency exemption (see Public Officers Law § 87[2][g] ) permit the withholding of the publicly-available information or factual data contained in such records. 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" ( ...
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