Orange County Publications, Inc., a Div. of Ottaway Newspapers v. County of Orange

• Decision Date: 15 June 1995
• Citation: 637 N.Y.S.2d 596,168 Misc.2d 346
• Parties: In the Matter of ORANGE COUNTY PUBLICATIONS, INC., a Division of Ottaway Newspapers, Petitioner, v. COUNTY OF ORANGE, Respondent.
• Court: New York Supreme Court

Page 596

637 N.Y.S.2d 596

168 Misc.2d 346

In the Matter of ORANGE COUNTY PUBLICATIONS, INC., a

Division of Ottaway Newspapers, Petitioner, v. COUNTY OF ORANGE, Respondent.

Supreme Court, Orange County.

June 15, 1995.

Van De Water & Van De Water, Poughkeepsie, for Petitioner.

Richard B. Golden, County Attorney of Orange County, Goshen, for Respondent.

JOHN P. DiBLASI, Justice.

The central issue in this CPLR Article 78 proceeding is whether the description of legal services provided to a local government is subject to disclosure pursuant to Public Officers Law Article 6. Upon the facts involved herein, this Court concludes that the information sought may be subject to disclosure, and that an in camera inspection of the records at issue is required.

FACTUAL BACKGROUND

The County of Orange (respondent) is currently involved in a federal court environmental lawsuit (the landfill action) in which it is represented by outside counsel, LeBoeuf, Lamb, Greene & MacRae (the law firm). On or about January 10, 1995 Christopher Mele (Mele), a reporter for the Times Herald-Record (petitioner), requested information from respondent concerning the legal work "(1) the amount of money paid in 1994 to the law firm of LeBouef (sic), Lamb, Green & McRae (sic), for their legal service in representing the county in its landfill expansion lawsuit" and

performed by the law firm. Specifically, and pursuant to the "Freedom of Information Law", Mele requested:

"(2) copies of invoices, bills, vouchers submitted to the county from the law firm justifying and itemizing the expenses for 1994".

Based upon a conversation between Richard B. Golden (Golden), the County Attorney for Orange County, and Mele, it was agreed that Mele would accept production of vouchers that were submitted by the law firm to respondent for payment, notwithstanding that these differed from the detailed billing statements which the law firm submitted, and which, Golden asserted, contained confidential information (Golden Affidavit in Opposition to Petition, par. 2-3).

Thereupon, Golden provided Mele with a list setting forth the number and date of, and the amount of money requested in, each voucher. On February 16, 1995 respondent's Record Access Officer sent Mele copies of the law firm's vouchers ¹. While the vouchers contained certain information ², Mele was denied access to "an itemization of expenses incurred for" the legal services performed by the firm, on the ground that "disclosure of those specifics would be in violation of [the] attorney/client privilege" (Exh. B to Petition). However, pursuant to further discussion between Mele and Golden, Mele submitted a further written request in which he sought "copies of the monthly vouchers submitted to the county by [the law firm] detailing the date the work that was done, description of the work done, amount of time it took, the party doing the work, and the related cost, plus the various disbursements". This request was made by Mele with the "understand[ing] that the descriptive details of work done w[ould] be redacted" (Exh. B. to Golden Affid.).

On March 10, 1995, respondent sent Mele the requested monthly billing information (the monthly bills). ³ Nevertheless, as respondent concedes, it did not provide Mele with "the daily descriptions of the specific tasks" (the descriptive material), "including descriptions of issues researched, meetings and conversations between attorney and client" (Golden Affid., par. 6).

On March 2, 1995, petitioner appealed the denial of the request for the descriptive material. By letter dated March 15, 1995, Golden affirmed the decision of the Record Access Officer denying Mele disclosure of that material, based upon three grounds, namely (1) the attorney-client privilege; (2) the attorney work product privilege; and (3) the privilege for intra-agency material. (Golden Letter dated March 15, 1995, Exh. E to Petition). Petitioner then commenced this Article 78 proceeding, seeking a judgment directing (1) that the monthly bills be submitted to the Court for in camera inspection and redaction of privileged matter; (2) that the redacted records be provided to petitioner; and (3) that attorneys' fees be awarded to petitioner.

FREEDOM OF INFORMATION LAW

Public Officers Law § 87(2) provides, insofar as relevant to this proceeding, that

Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that:

(a) are specifically exempted from disclosure by state or federal statute ...

(g) are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data.

This provision is part of Article 6 of the Public Officers Law, which has been designated the "Freedom of Information Law" (FOIL). Public Officers Law § 85.

FOIL was enacted to make government more accountable to its citizens by granting statutory recognition of the public's "right to know" more about government operations. Matter of Weston v. Sloan, 84 N.Y.2d 462, 466, 619 N.Y.S.2d 255, 643 N.E.2d 1071 (1994). In order to implement the broad purposes of FOIL, judicial interpretation of the statute has been liberal. Matter of Weston v. Sloan, supra; see, Matter of Capital Newspapers v. Burns, 67 N.Y.2d 562, 505 N.Y.S.2d 576, 496 N.E.2d 665 (1986). Thus, relying upon the specific language of the statute (see, Public Officers Law § 87[2] ), it has consistently been held that all records of an agency are presumptively available for public inspection and copying, unless they fall within one of the statutory exemptions. Capital Newspapers v. Burns, supra, 67 N.Y.2d at 566, 505 N.Y.S.2d 576, 496 N.E.2d 665; Matter of Farbman & Sons v. New York City Health & Hospitals Corp., 62 N.Y.2d 75, 79-80, 476 N.Y.S.2d 69, 464 N.E.2d 437 (1984).

To further the statute's purpose of opening government operations to public oversight, the statutory exemptions are themselves to be construed narrowly. Capital Newspapers v. Burns, supra, 67 N.Y.2d at 566, 505 N.Y.S.2d 576, 496 N.E.2d 665. Additionally, since "[f]ull disclosure by public agencies is, under FOIL, a public right and in the public interest" (Matter of Farbman & Sons v. New York City Health & Hospitals Corp., supra, 62 N.Y.2d at 80, 476 N.Y.S.2d 69, 464 N.E.2d 437), a party seeking public records is not required to make "any showing of need, good faith or legitimate purpose" (supra). To the contrary, it has been repeatedly held that the public agency bears the burden of proving that requested information is exempt from disclosure. Matter of Farbman & Sons v. New York City Health & Hospitals Corp., supra, 62 N.Y.2d at 80, 476 N.Y.S.2d 69, 464 N.E.2d 437; Matter of Washington Post Co. v. New York State Ins. Dept., 61 N.Y.2d 557, 566, 475 N.Y.S.2d 263, 463 N.E.2d 604 (1984). To meet this burden, the public agency must "demonstrat[e] that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" (Capital Newspapers v. Burns, supra, 67 N.Y.2d at 566, 505 N.Y.S.2d 576, 496 N.E.2d 665; Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463 [1979].

In this proceeding, respondent contends that the descriptive material is exempt from disclosure on the same three grounds set forth in Golden's letter denying petitioner's administrative appeal. These grounds are addressed in the order argued by the parties.

ATTORNEY-CLIENT PRIVILEGE

Respondent first contends that the descriptive material is specifically exempted from disclosure by state statute (see, Public Officers Law § 87[2][a] ). In particular, respondent urges that the material is protected by the attorney-client privilege. As codified in CPLR 4503, that privilege protects against compelled disclosure of "evidence of a confidential communication made between the attorney or his employee and the client in the course of professional employment". Taking a very broad view of the term "communication", respondent claims that all of the descriptive material is protected by the privilege. This Court disagrees with respondent's assertion.

The attorney-client privilege was born, and has continued to exist, in order to "encourage persons needing professional advice to disclose freely the facts in reference to which they seek advice, without fear that Indeed, in order to successfully assert the privilege, a party must establish, inter alia, that the communication relates to a fact of which the attorney was informed, an opinion on law, or legal services, or assistance in some legal proceeding. People v. Belge, 59 A.D.2d 307, 309, 399 N.Y.S.2d 539 (4th Dept.1977), quoting United States v. United Shoe Mach. Corp., 89 F.Supp. 357, 358-359 (D.Mass.1950). The burden of proving all elements of the privilege rests upon the party asserting it. Matter of Priest v. Hennessy, supra, 51 N.Y.2d at 69, 431 N.Y.S.2d 511, 409 N.E.2d 983; Matter of Gavin, 39 A.D.2d 626, 628, 331 N.Y.S.2d 188 (3d Dept.1972).

                such facts will be made public to their disgrace or detriment by their attorney" (Hurlburt v. Hurlburt, 128 N.Y. 420, 424, 28 N.E. 651 [1891];  Matter of Jacqueline F., 47 [168 Misc.2d 352] N.Y.2d 215, 218, 417 N.Y.S.2d 884, 391 N.E.2d 967 [1979].  Nevertheless, to the extent that it, like any privilege, creates an exception to the general rule that all persons having relevant personal knowledge of an issue must testify when called upon to so in a legal proceeding, it "constitutes an 'obstacle' to the truth-finding process, the invocation of which should be cautiously observed to ensure that its application is consistent with its purpose" (Matter of Jacqueline F., supra, 47 N.Y.2d at 219, 417 N.Y.S.2d 884, 391 N.E.2d 967).   Thus, it is beyond dispute that the privilege "is not limitless" (Matter of Priest v. Hennessy, 51 N.Y.2d 62, 68, 431 N.Y.S.2d 511, 409 N.E.2d 983 [1980]
                

In this case, ...