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 FOIL 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.