Matter of Shooters Committee on Political Education, Inc. v. Cuomo

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: February 23, 2017 522337
_________________________________

In the Matter of SHOOTERS
COMMITTEE ON POLITICAL
EDUCATION, INC., et al.,
Respondents,
v MEMORANDUM AND ORDER

ANDREW CUOMO, as Governor of
the State of New York,
et al.,
Appellants.
_________________________________

Calendar Date: January 10, 2017

Before: Garry, J.P., Rose, Devine, Clark and Mulvey, JJ.

__________

Eric T. Schneiderman, Attorney General, Albany (Jeffrey W.
Lang of counsel), for appellants.

James Ostrowski, Buffalo, for respondents.

__________

Mulvey, J.

Appeals 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.

Petitioners 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
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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).

Pursuant 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 AD3d 586, 587 [2004]). 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.

Document 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
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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 AD3d
997, 1001 [2016]). 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 NY2d 588, 593-594 [1989]). "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 omitted]).

Documents 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 NY2d 267, 277 [1996]).
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
AD3d 846, 847 [2006] [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 NY2d at 593-594) and
attorney work product (see Matter of Spring v County of Monroe,
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141 AD3d 1151, 1152 [2016]).

Turning 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
AD3d 948, 951 [2011]), we see no factual basis in the record
demonstrating that these communications were in furtherance of
such activity.

Garry, J.P., Rose, Devine and Clark, JJ., concur.

ORDERED 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 16 and 23 through
30, and, as so modified, affirmed.

ENTER:

Robert D. Mayberger
Clerk of the Court