Austin v. Purcell

— In a proceeding pursuant to CPLR article 78, the appeal is from a judgment of the Supreme Court, Nassau County (Velsor, J.), dated July 14, 1983, which directed that the appellants furnish petitioners access to a particular document, pursuant to section 87 of the Public Officers Law. H Judgment reversed, on the law, with costs, and proceeding dismissed on the merits. 11 The appellant County of Nassau retained independent counsel to evaluate the possibility of recovery in a particular civil lawsuit. Counsel submitted a written report to the County Attorney, and appellant Purcell announced that on the basis of the 828 report the county had decided not to pursue the particular litigation. Purcell related that counsel had concluded that there was no reasonable likelihood of success and that such litigation would be costly and time consuming. The county has never released the text of the report and there has been no further comment with respect to its contents. 11 Petitioner Austin demanded access to the report pursuant to the Freedom of Information Law (Public Officers Law, art 6), but the demand was denied by the County Attorney. Petitioners thereupon commenced the instant proceeding, inter alia, to compel the county to release the report. Special Term granted this relief, reasoning that Purcell’s discussion of the substance of the report constituted a waiver of the attorney-client privilege, thereby making an otherwise confidential document subject to the disclosure requirements of the Freedom of Information Law. 11 Although the general policy of the Freedom of Information Law is one of disclosure (see Matter of Fink v Lefkowitz, 47 NY2d 567; Public Officers Law, § 84), there are certain limited exceptions to its requirements. It is incumbent upon the authority seeking to withhold a public record to establish that it falls within one of the exemptions (see Matter of Doolan v Board of Coop. Educational Servs., 48 NY2d 341). We agree with Special Term that the document in question is not “specifically exempted from disclosure by state or federal statute” (Public Officers Law, § 87, subd 2, par [a]). K Special Term, however, erred in holding that the document in question is not intra-agency material which is exempt from disclosure (see Public Officers Law, § 87, subd 2, par [g]). Consultant’s reports are treated as intra-agency material, even though prepared by an extragovernmental entity (see Matter of Sea Crest Constr. Corp. v Stubing, 82 AD2d 546), and therefore are exempt from disclosure unless they fall within one of the three exceptions to the exemption for intra-agency material: 11 “[1] statistical or factual tabulations or data; [2] instructions to staff that affect the public; and [3] final agency policy or determinations” (Public Officers Law, § 87, subd 2, par [g]). 11 At oral argument this court was furnished, upon the consent of all parties, with a copy of the document in question for the purpose of making an in camera examination (see Kheel v Ravitch, 62 NY2d 1, 7-8). We conclude from such examination that the materials contained therein do not fall within any of the three exceptions to the exemption. Mangano, J. P., Bracken and Weinstein, JJ., concur.