In the Matter of SHOOTERS COMMITTEE ON POLITICAL EDUCATION, INC., et al., Respondents,
ANDREW CUOMO, as Governor of the State of New York, et al., Appellants.
Calendar Date: January 10, 2017
T. Schneiderman, Attorney General, Albany (Jeffrey W. Lang of
counsel), for appellants.
Ostrowski, Buffalo, for respondents.
Before: Garry, J.P., Rose, Devine, Clark and Mulvey, JJ.
MEMORANDUM AND ORDER
from two judgments of the Supreme Court (Melkonian, J.),
entered August 12, 2015 and November 19, 2015 in Albany
County, which partially granted petitioners' application,
in a proceeding pursuant to CPLR article 78, to annul three
determinations of respondents partially denying
petitioners' Freedom of Information Law request.
sought records from respondents related to a rally held at
the Empire State Plaza in April 2014. Under the Freedom of
Information Law (see Public Officers Law art 6
[hereinafter FOIL]), petitioners requested several categories
of records. Respondents separately replied by producing some
and redacting and withholding others. Following
administrative appeals, petitioners commenced this CPLR
article 78 proceeding to challenge respondents'
determinations. Respondents jointly answered and submitted
all of the unredacted and withheld documents, together with
privilege logs, to Supreme Court for its review. After
conducting an in camera review, the court upheld some of
respondents' determinations and rejected others. The
court also denied petitioners' request for counsel fees.
Following a motion by respondents for clarification, Supreme
Court conducted an additional in camera review and issued a
second judgment ordering, among other things, that
respondents disclose certain documents in whole or in part.
Respondents appeal from both judgments, limiting their appeal
to nine documents (identified as Executive Chamber documents
16 and 23 through 30).
to Public Officers Law § 87 (2) (g), "inter-agency
or intra-agency materials" are exempt from FOIL
disclosure to the extent that they do not contain "(i)
statistical or factual tabulations or data; (ii) instructions
to staff that affect the public; [or] (iii) final agency
policy or determinations." Public Officers Law § 87
(2) (a) also exempts from disclosure materials
"specifically exempted from disclosure by state or
federal statute, " which includes privileged
communications between attorneys and their clients as well as
attorney work product (Matter of Morgan v New York State
Dept. of Envtl. Conservation, 9 A.D.3d 586, 587 ).
Respondents contend that all of the documents at issue
constitute both inter-agency as well as privileged
attorney-client communications and are exempt from disclosure
in their entirety. Based on our own in camera inspection, we
find that Supreme Court erred when it determined that these
documents contain factual information subject to disclosure.
16 is a brief email from a deputy counsel at respondent
Office of General Services to an assistant counsel to
respondent Governor regarding the agencies' response to a
FOIL inquiry. It identifies a rule and appended other
documents that are not the subject of this appeal. There is
no statistical or factual tabulation or data set forth in the
email message. We therefore find that it is exempt from
disclosure because it constitutes an inter-agency
communication in furtherance of the decision-making process
(see Matter of Moody's Corp. & Subsidiaries v New
York State Dept. of Taxation & Fin., 141 A.D.3d 997,
1001 ). This document is also exempt from disclosure as
a privileged attorney-client communication because it is part
of the formulation of the government's response to the
FOIL requests (see Rossi v Blue Cross & Blue Shield
of Greater N.Y., 73 N.Y.2d 588, 593-594 ).
"So long as the communication is primarily or
predominantly of a legal character, the privilege is not lost
merely by reason of the fact that it also refers to certain
nonlegal matters" (id. at 594 [citations
23 through 30 are comprised of a chain of emails between an
assistant counsel to the Governor, two FOIL attorneys for the
Executive Chamber and a records access officer for respondent
State Police. These documents also constitute exempt
inter-agency materials. We disagree with Supreme Court that
they contain factual data subject to disclosure.
"Factual data... simply means 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 N.Y.2d 267, 277 ). Documents 23
through 26 comprise an email chain beginning with a proposed
response describing the legal authority for a rule, a summary
of the background for the FOIL request, and a draft response
to the FOIL request. Documents 27 through 30 are duplications
of what appears in documents 23 through 26 as they are
products of email forwarding. Supreme Court directed the
disclosure of portions that include brief communications
between the participants and the aforesaid summary and draft
response. We do not view these portions as the kind of
objective information subject to disclosure, since they are
clearly drafted "for discussion purposes [and do] not
constitut[e] final policy decisions" (Matter of
Stein v New York State Dept. of Transp., 25 A.D.3d 846,
847  [internal quotation marks and citations omitted]).
Again, as we found in regard to document 16, these
communications are also exempt from disclosure, in their
entirety, as both attorney-client communications (see
Rossi v Blue Cross & Blue Shield of Greater N.Y., 73
N.Y.2d at 593-594) and attorney work product (see Matter
of Spring v County of Monroe, 141 A.D.3d 1151, 1152
finally to petitioners' contention that the
attorney-client privilege should not apply to communications
in furtherance of fraud or wrongful conduct (see Parnes v
Parnes, 80 A.D.3d 948, 951 ), we see no factual
basis in the record demonstrating that these communications
were in furtherance of such activity.
J.P., Rose, Devine and Clark, JJ., concur.
that the judgments are modified, on the law, without costs,
by reversing so much thereof as ordered disclosure of any
portions of Executive Chamber documents ...