May 10, 2018

FOIL, the Agency Privilege Exemption, and Outside Consultants

3 min

A number of legal decisions have addressed the scope of the New York Freedom of Information Law (FOIL) inter-agency/intra-agency communications exemption from production. This "agency privilege" exemption allows FOIL responders to withhold from production certain documents containing impressions and opinions of agency employees. But what if the communications sought are authored by an outside consultant advising the state agency? A recent decision from the New York Appellate Division, First Department has helped to clarify the agency privilege as it pertains to outside consultants.

In Rauh v. de Blasio, a long-running legal dispute that attracted the attention of political watchdogs and FOIL observers, the mayor's office refused to produce documents related to communications the mayor and his office had with a private outside consultant. Significantly, the consultant was retained not by the city, but by the Campaign for One New York (CONY), a nonprofit organization created by the mayor's election campaign. In denying the FOIL demands served by news agencies, the mayor's office adopted the novel argument that the consultants were serving the mayor's office, essentially expanding the scope of the agency privilege exemption to cover a consultant not formally retained by the city. Because these outside consultants were "agents of the City," the mayor's office argued, their communications were protected from FOIL production under the agency privilege exemption found in Public Officers Law §87[2][g]. As might be expected, open government advocates reacted to this argument with considerable skepticism.

The First Department also appeared skeptical of the mayor's effort to expand the scope of the agency privilege exemption to cover a consultant not formally retained by the city. Citing Town of Waterford v. New York State Dept. of Envtl. Conservation, 18 NY3d 652 (2012), the First Department noted that FOIL is designed to enforce an open and transparent government through the presumption of public access to records in the possession of a government entity. The FOIL statute is intended to be liberally construed and its exceptions narrowly interpreted, so that citizens are granted maximum access to government records. Against this presumption, however, the First Department recognized that there are statutory exemptions from FOIL production for materials that constitute inter-agency or intra-agency materials pertaining to communications between civil servants. The purpose behind this exemption is to permit government actors to exchange opinions, advice, and criticism freely and frankly without the chilling prospect of future public disclosure. This agency privilege exemption has been extended to communications between a government agency and an outside consultant, as long as the outside consultant has been formally retained by the agency. Matter of Xerox v. Town of Webster, 65 NY2d 131 (1985).

Noting that the de Blasio campaign entity, CONY—not the City of New York—had retained the consultant, the First Department used de Blasio as a springboard to clarify that the outside consultant retention must be formalized if the agency intends to insulate communications with the consultant from public disclosure. Under de Blasio facts, the communications sought in the FOIL request were between a government agency and an outside consultant retained by a private organization and not by the agency itself. That connection was simply too remote to invoke the FOIL agency privilege exemption. This decision serves as a sharp reminder that government agencies must enter into formal agreements directly with outside consultants if they intend to protect communications with those consultants from FOIL disclosure.