Full Opinion (html_with_citations)

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.


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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



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                                           -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

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“[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

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                                            -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

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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

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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.
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                                           -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




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