Monday, June 11, 2012


On Feburary 8, 2012 I sued the Town of Stuyvesant to get photos of the Hook Boat Club, invoices for Whiteman, Osterman and Hanna, cancelled checks for Tal Rappleyea and some other stuff. After I sued them, I got everything I wanted. Today I got the judge's decision. Since I got everything I wanted, if the case is dismissed, fine with me. I sued. I got what I wanted. I won.

When the court says "given that petitioner has received all the relief to which he is entitled, the matter must be dismissed as moot" that means I got the documents. So case dismissed. I won.

Moral of the story:
If you send in  FOIL request, you had better be prepared to sue to get what you want to see. I am prepared to sue and I did get to see what I am entitled to see.

Here is the Register Star (written a few days after I posted the decision here on my blog). If you read the article you wouldn't know that I 1) did not get the documents until I sued; 2) got them after I sued. That's all you need to know. In my opinion, I won the case before the judge's decision.

And the Register Star story refers to Robert Freeman's Committee on Open Government talking about Melissa Naegeli a year and a half ago, or whatever it's called. Here is the man when he came to Stuyvesant.

Pending litigation: "neither a member of the public, nor an adverse party, forfeits rights to disclosure of government records once a government agency becomes involved in litigation” Orange County Publs. v. County of Orange, 637 N.Y.S.2d 596, 602 (N.Y. Sup. Ct. 1995) as per matters of Farbman & Sons v New York City Health & Hosps. Corp., supra; Matter of Burke v Yudelson, 51 AD2d 673, 674 [4th Dept 1976]).

Definition of privilege: Only communications that have as their purpose the obtaining by the client, or the providing by the attorney, of legal advice or assistance, come within the privilege (matters of King v Ashley, 179 N.Y. 281 [1904]; Kenford Co. v County of Erie, 55 AD2d 466, 469 [4th Dept 1977]; Stefano v C. P. Ward, Inc., 19 AD2d 473 [3d Dept 1963].)

Letters and memos are different than invoices (matters of Steele v New York State Dept. of Health, supra; Mahoney v Staffa, supra; Matter of Austin v Purcell, supra). The court recognizes that not all communications between attorney and client are privileged (matter of Priest v Hennessy, supra, 51 NY2d, at 68, 69.). In particular, “fee arrangements between attorney and client do not ordinarily constitute a confidential communication and, thus, are not privileged in the usual case” (supra). Indeed, “[a] communication concerning the fee to be paid has no direct relevance to the legal advice to be given,” but rather “is a collateral matter which, unlike communications which relate to the subject matter of the attorney's professional employment, is not privileged” (matter of Priest v Hennessy, supra, 51 NY2d, at 69.)

Definition of attorney work: Respondents’ denial of the FOIL request cannot be upheld unless the descriptive material is uniquely the product of the professional skills of respondent's counsel. The preparation and submission of a bill for fees due and owing, not at all dependent on legal expertise, education or training, cannot be “attribute[d].. to the unique skills of an attorney” (Brandman v Cross & Brown Co., 125 Misc 2d 185, 188 [Sup Ct, Kings County 1984]). In Westchester Rockland Newspapers v Mosczydlowski (supra), as cited in Orange County Publs. v. County of Orange, 637 N.Y.S.2d 596, 602 (N.Y. Sup. Ct. 1995 a FOIL exemption for material covered by CPLR 3101 (d) was allowed in attorney invoices: “legal issues researched, which bear upon the law firm's theories…; conferences with witnesses not yet identified… in ongoing litigation” (also see, De La Roche v De La Roche, supra, 209 AD2d, at 158, 159.).

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