Matthew McLaughlin ()
Parties involved in disputes with public agencies generally know that those entities are subject to requests under the New York Freedom of Information Act (FOIL). It is also settled that public agencies involved in civil litigation likewise remain subject to CPLR requests. Litigants thus have an opportunity to bring a two-front attack when obtaining documents from a public agency. The CPLR and the FOIL statutes operate in tandem, and choosing one route to obtain documents from a public agency does not preclude use of the other. The tandem operation of these two statutes brings, however, an often unappreciated twist. Under FOIL, public agencies enjoy certain exceptions to the obligation to produce documents. Several courts, including three of the Appellate Division departments, hold that the exceptions to production found in the FOIL statute may be used defensively in civil litigation, thereby permitting a public agency to withhold documents for FOIL-based reasons.
Recent jurisprudence from the Appellate Division, Fourth Department has opened a chasm in the intersection between the CPLR discovery devices and the operation of FOIL. While the other Appellate Division departments hold that exceptions to production found in FOIL may be used in standard civil litigation, the Fourth Department disagrees. This tension in the departments is ripe for a Court of Appeals resolution. This article will discuss the conflict and suggest a resolution based on existing Court of Appeals authority.
FOIL and the CPLR
It all begins with the seminal decision Farbman & Sons v. New York City Health and Hospitals, 62 N.Y.2d 75 (1984). There, the Court of Appeals held that the production obligations of FOIL operate in tandem with the obligations of Article 31 of the CPLR. In Farbman, a construction contractor for the New York City Health and Hospitals Corporation (HHC) served a FOIL request on HHC for documents related to services rendered. While the FOIL request was pending, the contractor commenced litigation. Reviewing the policy underlying the FOIL statute beside that of the CPLR, the Court of Appeals held that the statutes operate jointly in that a party may pursue a FOIL request while a litigation progresses. Reasoning to this conclusion, the Court of Appeals noted that “[i]f the Legislature had intended to exempt agencies involved in litigation from FOIL, it certainly could have so provided.” Farbman, 62 N.Y.2d at 81.
Against the backdrop of Farbman, Appellate Division authority has developed, establishing that public agencies involved in litigation are also entitled to the protections afforded by agency privileges, such as the deliberative process privilege protecting inter-/intra-agency communications from disclosure. The inter-/intra-agency deliberative process privilege is commonly applied in response to a FOIL request, and this exception to a FOIL production is codified in the FOIL statute. Public Officers Law §87(2)(g). Relying on Farbman, Appellate Division departments have reasoned that the protective privileges embodied in FOIL should be available to a party in a civil litigation. Without this protection, the FOIL statute could be eviscerated by a FOIL requester simply filing a lawsuit and seeking disclosure under the CPLR.
The Second Department has been the most fertile ground for the flourishing of the deliberative process privilege in civil suits. In Mecca v. Shang, 55 A.D.3d 570 (2d Dept. 2008), plaintiff brought a legal malpractice action and sought discovery of documents from the Department of Health (DOH). The DOH withheld selected documents, claiming that they were exempt from discovery under agency privilege. The Second Department agreed that the documents were exempt from disclosure for various reasons, including the “deliberative process privilege.” Mecca, 55 A.D.3d at 571. Significantly, Mecca was decided in the context of a litigation and did not involve a FOIL request.
Similarly, in New York Telephone v. Nassau County, 54 A.D.3d 368 (2d Dept. 2008), water and telephone utilities brought suit relating to property assessment values. In the dispute, a non-FOIL proceeding, the utilities sought disclosure of communications between Nassau County officials regarding the review of Nassau County’s finances. The Second Department held that the communications sought were insulated because “[t]he communications at issue are protected from disclosure by the deliberative process privilege.” New York Telephone, 54 A.D.3d at 370.
The First Department also holds that a “public interest privilege” protects certain government documents from public disclosure. In One Beekman Place v. City of New York, 169 A.D.2d 492 (1st Dept. 1991), Manhattan property owners challenged a re-zoning plan and sought in litigation production of documents prepared by the Department of City Planning. These documents contained staff members’ analyses, opinions, and recommendations. The First Department began its analysis by noting that “[i]t has long been recognized that the public interest is served by keeping certain government documents privileged from disclosure.” Id. at 170. Surveying the law in the area, the First Department referenced the FOIL statute as protecting government interests and then noted that “[i]t is, for example, in the public interest to encourage candid discussion and representation of views among government employees involved in the development of policy.” One Beekman Place, 169 A.D.2d at 493.
Providing guidance in assessing whether the public interest privilege is applicable, the First Department cautioned: “a court must weigh the encouragement of candor in the development of policy against the degree to which the public interest may be served by disclosing information which elucidates the governmental action taken.” One Beekman Place, 169 A.D.2d at 493. Conducting that analysis on the City Planning documents, the First Department concluded that they fell within the privilege afforded to confidential communications among public officers and held that the documents should have been withheld.
Other Appellate Division decisions also apply agency privileges in non-FOIL, standard litigation, contexts. For example, in Flores v. City of New York, 207 A.D.2d 302 (1st Dept. 1994) the court denied a request for production of documents in a civil rights lawsuit on the grounds that the requested documents were pre-decisional intra-agency materials. In the last two years, the Third Department likewise held that documents should be withheld from a litigation production because of the deliberative process privilege. Entergy Nuclear Indian Point 2 v. NYS Dept. of State, 130 A.D.3d 1190 (3rd Dept. 2015).
Fourth Department Differs
Two recent Fourth Department decisions break from the interpretation of Farbman adopted by the other departments. In Abate v. County of Erie, 152 A.D.3d 177 (4th Dept. 2017) the Fourth Department rejected the notion that privileges afforded by FOIL would apply in a CPLR document production. Citing Farbman, the Fourth Department opined that the “discovery provisions of CPLR article 31 operate independently of the Freedom of Information Law and a litigant’s entitlement to any particular evidentiary item under article 31 is not affected by the disclosability of that item under FOIL.” Abate, 152 A.D.3d at 181.
Likewise, the Fourth Department, in Mosey v. County of Erie, 148 A.D.3d 1572 (4th Dept. 2017), also held that documents protected by inter-/intra-agency deliberative process privilege must be produced in civil litigation. Critical of decisions that “all too casually” mention the deliberative process privilege and “purport to apply it outside the context of a FOIL proceeding,” Mosey, 148 A.D.3d at 1575, the Fourth Department held that the Court of Appeals case law should not be construed as having created a distinct “deliberate process privilege” that should apply outside the context of a FOIL proceeding. The court therefore ordered the production of documents that would have otherwise been protected under the deliberative process privilege.
The Appellate Division disagreement regarding the overlap between FOIL and the CPLR began with Farbman. The tension will be resolved with a revisitation of that decision by the Court of Appeals. Farbman made explicit that FOIL and the CPLR can be used offensively in tandem: a civil litigant may still serve a valid FOIL request. The decision neglected to explicitly address the converse question of whether FOIL defenses may be used by a public agency to withhold a document in civil litigation.
In the search for a solution, it bears noting that the lower courts interpreting Farbman have each missed an implicit point in the decision. Farbman concluded with a direction that the lower court conduct an in camera inspection of the documents considered for production. The Court of Appeals, having decided that a litigant is entitled to make a FOIL request, nevertheless held that the documents need to be reviewed by a judge to discern whether they contain intra-/inter-agency deliberative materials. In the thicket of proceedings involving a FOIL request and CPLR document demands, Farbman noted that the agency privileges needed guarding. This significant coda to Farbman has gone unrecognized, particularly by the Fourth Department and other courts that have concluded that FOIL protections should not be afforded in civil litigation. While Farbman could have been more explicit, it remains clear enough that the Court of Appeals has already held that the agency privileges found in FOIL should operate to allow parties in civil litigation to withhold documents containing information protected by public agency privileges.