New York public policy is in favor of government transparency and public access to government records, as reflected in New York’s Freedom of Information Law (FOIL). See Public Officers Law, Article 6. Does this mean, for example, confidential communications relating to legal matters between the governor and the governor’s counsel, state agency head and the agency’s general counsel, the agency’s general counsel and the governor’s counsel, or a town supervisor and the town attorney, are subject to disclosure, either under FOIL or in litigation? Or may the attorney-client privilege, as codified in CPLR 4503(c), be invoked to bar disclosure?

Several states, supported by academic commentary and the Revised Uniform Rules of Evidence, have either precluded or greatly limited the applicability of the privilege for such governmental confidential communications. Such view of the privilege is premised upon a public policy against secrecy in governmental activity that a government official or entity has no right of confidentiality in communications relating to government activity. See generally, Salkin, “Beware What You say to Your [Government] Lawyer – The Erosion of Government Attorney-Client Confidentiality”, 35 Urban Lawyer 283 [2003]).