State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.
No. 91 In the Matter of Appellate Advocates, Appellant, v. New York State Department of Corrections and Community Supervision, Respondent.
Ron Lazebnik, for appellant. Frank Brady, for respondent. New York Coalition for Open Government, Inc., Parole Preparation Project et al., amici curiae.
RIVERA, J.:
On this appeal we must determine whether the Department of Corrections and
Community Supervision (DOCCS) properly withheld 11 documents prepared by counsel
for the Board of Parole as privileged communications exempt from Freedom of
Information Law (FOIL) disclosure. Counsel prepared the documents to train and advise
Board of Parole commissioners on how to comply with their legal duties and obligations.
-1- -2- No. 91
The documents reflect counsel’s legal analysis of statutory, regulatory and decisional law
and they therefore constitute attorney-client communications that were prepared “for the
purpose of facilitating the rendition of legal advice or services, in the course of a
professional relationship,” specifically, to provide guidance on matters relevant to the
Commissioners’ exercise of their discretionary authority (Rossi v Blue Cross & Blue Shield
of Greater NY, 73 NY2d 588, 593 [1989]). Accordingly, DOCCS properly invoked the
statutory FOIL exemption for privileged matters (see Public Officers Law § 87 [2] [a];
CPLR 4503 [a]).
***
Petitioner Appellate Advocates filed a FOIL request with respondent DOCCS for
various materials related to the Board of Parole’s decision-making process. DOCCS
disclosed thousands of pages of material but withheld several documents, asserting, as
relevant to this appeal, that they are privileged attorney-client communications. The
determination was confirmed on administrative appeal. Appellate Advocates then
commenced this Article 78 proceeding to obtain the withheld documents. During the
pendency of this action, the parties entered a settlement pursuant to which DOCCS
disclosed approximately 400 additional documents, leaving the 11 documents at issue in
this appeal.
After an in-camera review, Supreme Court affirmed DOCCS’ denial of disclosure
and dismissed the petition. The Appellate Division affirmed in a 3-2 decision, concluding
that the documents were protected by the attorney-client privilege (163 NYS3d 314, 318
-2- -3- No. 91
[3d Dept 2022]). The appeal is before us based on the two-justice dissent (CPLR 5601 [a]).
We now affirm.
Under New York State’s FOIL, documents shall be disclosed, unless they fall within
an enumerated statutory exemption (see Public Officers Law § 87 [2] [a]; Matter of Town
of Waterford v New York State Dept. of Envtl. Conservation, 18 NY3d 652, 657 [2012]).
As the Court has explained, FOIL is “liberally construed and its exemptions narrowly
interpreted” to achieve its legislative purpose of maximizing public access to government
records (Matter of Town of Waterford, 18 NY3d at 657, quoting Matter of Capital
Newspapers, Div. of Hearst Corp. v Whalen, 69 NY2d 246, 252 [1987]; see also Matter of
Friedman v Rice, 30 NY3d 461, 475 [2017]). We give an exemption its “natural and
obvious meaning where such interpretation is consistent with the legislative intent and with
the general purpose and manifest policy underlying FOIL” (Matter of Abdur-Rashid v New
York City Police Dept., 31 NY3d 217, 225 [2018] [internal quotation marks and citation
omitted]). The Government bears the burden of establishing an exemption (Matter of Town
of Waterford, 18 NY3d at 657).
DOCCS invoked section 87 (2) (a), which provides that an agency “may deny
access to records or portions thereof, that [ ] are specifically exempted from disclosure by
state or federal statute” (Public Officers Law § 87 [2] [a]). In turn, CPLR 4503(a) (1)
codifies the common law attorney-client privilege and exempts from disclosure
confidential attorney-client communications. “In order for the privilege to apply, the
communication from attorney to client must be made ‘for the purpose of facilitating the
rendition of legal advice or services, in the course of a professional relationship’ ” and
-3- -4- No. 91
“[t]he communication itself must be primarily or predominantly of a legal character”
(Spectrum Sys. Intl. Corp. v Chem Bank, 78 NY2d 371, 377-378 [1991], quoting Rossi, 73
NY2d at 593-594).
The privilege “fosters the open dialogue between lawyer and client that is deemed
essential to effective representation” and extends to both communications from client to
lawyer and, as here, lawyer to client (id. at 377). “Because the privilege shields from
disclosure pertinent information and therefore ‘constitutes an “obstacle” to the truth-
finding process,’ ” it must be narrowly construed” (Ambac Assur. Corp. v Countrywide
Home Loans, Inc., 27 NY3d 616, 624 [2016], quoting Matter of Jacqueline F., 47 NY2d
215, 219 [1979], citing Spectrum, 78 NY2d at 377). However, the fact “[t]hat nonprivileged
information is included in an otherwise privileged lawyer’s communication to its
client . . . does not destroy the immunity” (Spectrum, 78 NY2d at 378). In determining
whether the privilege attaches, “[t]he critical inquiry is whether, viewing the lawyer’s
communication in its full content and context, it was made in order to render legal advice
or services to the client” (id. at 379).
DOCCS submitted an affirmation in support of its invocation of the privilege from
counsel to the Board who asserted that counsel prepared the documents as legal advice. It
is clear from the documents’ content and the context in which they were prepared and
presented—i.e. for training and advising commissioners on how to dispatch their duties
and obligations in deciding parole applications—that these documents are privileged
communications from counsel to client. The documents contain counsel’s advice regarding
compliance with legal requirements concerning parole interviews and parole
-4- -5- No. 91
determinations, including as applied to persons designated as minor offenders. The
documents summarize recent court decisions and advise on how to apply statutes,
regulations, and case law to parole determinations. The documents also include guidance
on drafting parole decisions that accord with the law. In sum, the documents reflect
counsel’s legal analysis of statutory, regulatory and decisional law, and provide guidance
for the commissioners on how to exercise their discretionary authority (Rossi, 73 NY2d at
593). Therefore, the documents are privileged and fall squarely within the exemption under
Section 87 (2) (a).
We are unpersuaded by Appellate Advocates’ myriad arguments that disclosure is
required under FOIL. Appellate Advocates contends that the privilege applies only to
communications responding to an existing “real world factual situation”. However, this
view of attorney-client privilege undermines its purpose of fostering candid
communication between lawyer and client (see Spectrum, 78 NY2d at 378-379; Rossi, 73
NY2d at 591-592). We have never endorsed petitioner’s position that the privilege protects
only those communications made in anticipation of litigation or an exchange of
confidential information during a pending action. The reason is obvious given the advisory
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State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.
No. 91 In the Matter of Appellate Advocates, Appellant, v. New York State Department of Corrections and Community Supervision, Respondent.
Ron Lazebnik, for appellant. Frank Brady, for respondent. New York Coalition for Open Government, Inc., Parole Preparation Project et al., amici curiae.
RIVERA, J.:
On this appeal we must determine whether the Department of Corrections and
Community Supervision (DOCCS) properly withheld 11 documents prepared by counsel
for the Board of Parole as privileged communications exempt from Freedom of
Information Law (FOIL) disclosure. Counsel prepared the documents to train and advise
Board of Parole commissioners on how to comply with their legal duties and obligations.
-1- -2- No. 91
The documents reflect counsel’s legal analysis of statutory, regulatory and decisional law
and they therefore constitute attorney-client communications that were prepared “for the
purpose of facilitating the rendition of legal advice or services, in the course of a
professional relationship,” specifically, to provide guidance on matters relevant to the
Commissioners’ exercise of their discretionary authority (Rossi v Blue Cross & Blue Shield
of Greater NY, 73 NY2d 588, 593 [1989]). Accordingly, DOCCS properly invoked the
statutory FOIL exemption for privileged matters (see Public Officers Law § 87 [2] [a];
CPLR 4503 [a]).
***
Petitioner Appellate Advocates filed a FOIL request with respondent DOCCS for
various materials related to the Board of Parole’s decision-making process. DOCCS
disclosed thousands of pages of material but withheld several documents, asserting, as
relevant to this appeal, that they are privileged attorney-client communications. The
determination was confirmed on administrative appeal. Appellate Advocates then
commenced this Article 78 proceeding to obtain the withheld documents. During the
pendency of this action, the parties entered a settlement pursuant to which DOCCS
disclosed approximately 400 additional documents, leaving the 11 documents at issue in
this appeal.
After an in-camera review, Supreme Court affirmed DOCCS’ denial of disclosure
and dismissed the petition. The Appellate Division affirmed in a 3-2 decision, concluding
that the documents were protected by the attorney-client privilege (163 NYS3d 314, 318
-2- -3- No. 91
[3d Dept 2022]). The appeal is before us based on the two-justice dissent (CPLR 5601 [a]).
We now affirm.
Under New York State’s FOIL, documents shall be disclosed, unless they fall within
an enumerated statutory exemption (see Public Officers Law § 87 [2] [a]; Matter of Town
of Waterford v New York State Dept. of Envtl. Conservation, 18 NY3d 652, 657 [2012]).
As the Court has explained, FOIL is “liberally construed and its exemptions narrowly
interpreted” to achieve its legislative purpose of maximizing public access to government
records (Matter of Town of Waterford, 18 NY3d at 657, quoting Matter of Capital
Newspapers, Div. of Hearst Corp. v Whalen, 69 NY2d 246, 252 [1987]; see also Matter of
Friedman v Rice, 30 NY3d 461, 475 [2017]). We give an exemption its “natural and
obvious meaning where such interpretation is consistent with the legislative intent and with
the general purpose and manifest policy underlying FOIL” (Matter of Abdur-Rashid v New
York City Police Dept., 31 NY3d 217, 225 [2018] [internal quotation marks and citation
omitted]). The Government bears the burden of establishing an exemption (Matter of Town
of Waterford, 18 NY3d at 657).
DOCCS invoked section 87 (2) (a), which provides that an agency “may deny
access to records or portions thereof, that [ ] are specifically exempted from disclosure by
state or federal statute” (Public Officers Law § 87 [2] [a]). In turn, CPLR 4503(a) (1)
codifies the common law attorney-client privilege and exempts from disclosure
confidential attorney-client communications. “In order for the privilege to apply, the
communication from attorney to client must be made ‘for the purpose of facilitating the
rendition of legal advice or services, in the course of a professional relationship’ ” and
-3- -4- No. 91
“[t]he communication itself must be primarily or predominantly of a legal character”
(Spectrum Sys. Intl. Corp. v Chem Bank, 78 NY2d 371, 377-378 [1991], quoting Rossi, 73
NY2d at 593-594).
The privilege “fosters the open dialogue between lawyer and client that is deemed
essential to effective representation” and extends to both communications from client to
lawyer and, as here, lawyer to client (id. at 377). “Because the privilege shields from
disclosure pertinent information and therefore ‘constitutes an “obstacle” to the truth-
finding process,’ ” it must be narrowly construed” (Ambac Assur. Corp. v Countrywide
Home Loans, Inc., 27 NY3d 616, 624 [2016], quoting Matter of Jacqueline F., 47 NY2d
215, 219 [1979], citing Spectrum, 78 NY2d at 377). However, the fact “[t]hat nonprivileged
information is included in an otherwise privileged lawyer’s communication to its
client . . . does not destroy the immunity” (Spectrum, 78 NY2d at 378). In determining
whether the privilege attaches, “[t]he critical inquiry is whether, viewing the lawyer’s
communication in its full content and context, it was made in order to render legal advice
or services to the client” (id. at 379).
DOCCS submitted an affirmation in support of its invocation of the privilege from
counsel to the Board who asserted that counsel prepared the documents as legal advice. It
is clear from the documents’ content and the context in which they were prepared and
presented—i.e. for training and advising commissioners on how to dispatch their duties
and obligations in deciding parole applications—that these documents are privileged
communications from counsel to client. The documents contain counsel’s advice regarding
compliance with legal requirements concerning parole interviews and parole
-4- -5- No. 91
determinations, including as applied to persons designated as minor offenders. The
documents summarize recent court decisions and advise on how to apply statutes,
regulations, and case law to parole determinations. The documents also include guidance
on drafting parole decisions that accord with the law. In sum, the documents reflect
counsel’s legal analysis of statutory, regulatory and decisional law, and provide guidance
for the commissioners on how to exercise their discretionary authority (Rossi, 73 NY2d at
593). Therefore, the documents are privileged and fall squarely within the exemption under
Section 87 (2) (a).
We are unpersuaded by Appellate Advocates’ myriad arguments that disclosure is
required under FOIL. Appellate Advocates contends that the privilege applies only to
communications responding to an existing “real world factual situation”. However, this
view of attorney-client privilege undermines its purpose of fostering candid
communication between lawyer and client (see Spectrum, 78 NY2d at 378-379; Rossi, 73
NY2d at 591-592). We have never endorsed petitioner’s position that the privilege protects
only those communications made in anticipation of litigation or an exchange of
confidential information during a pending action. The reason is obvious given the advisory
role served by an attorney. Counsel often provides legal advice to assist the client in
deciding how best to order their affairs in compliance with legal mandates, including what
action, if any, to take in order to avoid litigation. Encouraging proactive compliance with
the law has patent benefits.
Nor is Appellate Advocates correct that the privilege is limited to communications
by counsel triggered by a client’s disclosure of confidential information or a direct request
-5- -6- No. 91
for advice. The privilege attaches so long as the communication is “made for the purpose
of facilitating the rendition of legal advice or services in the course of a professional
relationship” (Rossi, 73 NY2d at 593). It is in furtherance of that professional relationship
that counsel may bring to the client’s attention legal matters concerning statutory,
regulatory and decisional law, without the client initiating contact or positing a specific
question. In so doing, counsel relies on their professional judgment, experience, skill, and
knowledge of the law to assess the client’s potential needs and possible risk exposure. This
is the type of legal assistance and evaluation that a client may consider when ordering their
affairs.
To the extent Appellate Advocates claims that documents identified by DOCCS as
Commissioner training materials are categorically not exempt from disclosure, its position
is similarly based on a misunderstanding of the privilege and its purpose, and we reject this
proposed per se rule. Indeed, federal courts have held that training materials are privileged
when the materials convey confidential legal advice (see Valassis Communications, Inc. v
News Corp., 2018 WL 4489285, at *1 [SDNY Sept. 19, 2018, No. 17-CV-7378]; In re
Currency Conversion Antitrust Litigation, 2010 WL 4365548, at *1 [SDNY Nov. 3, 2010,
No. 05 CIV. 7116 WHP THK];; Friedman v Bloomberg LP, 2019 WL 9089585, at *1 [D
Conn Jan. 14, 2019, No. 3:15CV00443 (AWT)]; McKnight v Honeywell Safety Prod., USA,
2017 WL 721988, at *1 [DRI Feb. 23, 2017, No. CV 16-132 ML]).
Counsel is free to determine the best method to communicate legal advice to the
client. Here, the documents were prepared for and used during Board of Parole training
and so are privileged as they provide Commissioners with counsel’s legal analysis and
-6- -7- No. 91
advice on the statutory, regulatory, and decisional law that Commissioners should consider
during their decision-making process. Counsel must first interpret a statutory provision,
regulation or judicial decision and then determine what if any legal application it has to the
client. The lawyer’s communication of that analysis and advice is privileged regardless of
whether counsel communicates its view to the client in a slide show, as opposed to in a
letter or memorandum. Nor does it matter that this analysis and advice is communicated
during a training session. What matters is that the information is advice on the law
pertaining to the commissioners’ decisions on whether to grant parole.*
Lastly, Appellate Advocates’ argument that the public policy in favor of
transparency in parole board determinations trumps attorney-client privilege misses the
mark. FOIL reflects the state’s policy in favor of government transparency and public
access to government records (see Public Officers Law § 84). But the attorney-client
privilege exemption also reflects the state’s policy to protect attorney-client
communications to foster candid discussion between lawyer and client. This policy is
important in the public setting, where society at large benefits immensely from the free and
candid communication between government lawyers and government actors. The public is
* Contrary to Appellate Advocates’ assertion, the documents are not a formal pronouncement of agency policy. Supreme Court did not make any factual finding that these documents constituted DOCCS’ binding policy, and the record does not establish that the documents are anything other than legal advice that could be accepted or rejected by the Commissioners (cf. Charles v Abrams, 199 AD2d 652, 653 [3d Dept 1993] [attorney- drafted internal agency policy not protected by attorney-client privilege because, in part, “the documents contain the agency's final policy, which is to be applied to all litigation in general”]). Therefore, even assuming there is a final policy exception, it would not apply here. -7- -8- No. 91
well served when counsel advises government clients on how to lawfully fulfill their public
duties.
In sum, DOCCS properly withheld the 11 remaining documents as privileged
communications because they are exempted from FOIL disclosure pursuant to section
§ 87 (2) (a). Accordingly, the order of the Appellate Division should be affirmed, with
costs.
Order affirmed, with costs. Opinion by Judge Rivera. Chief Judge Wilson and Judges Garcia, Singas, Cannataro, Troutman and Halligan concur.
Decided December 19, 2023
-8-