State of New York
Supreme Court : County of Steuben

Petitioner,

for a Judgment pursuant to CPLR Article 78,

- against -

Index No. 85000

Defendants.
_______________________________

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

This is an application under CPLR Article 78 to review the denial of a Freedom of Information Law request. The circumstances of the request are unusual, as is the request itself, and the increasing volume of submissions in the case has done nothing to clarify the petitioner's position.

Petitioner Paul Argentieri is a lawyer who was elected to the Hornell School Board, where he still sits; his term expires later this year. At the time of his election he was prosecuting a case on behalf of several infant plaintiffs who had allegedly been sexually abused by a janitor in the schools. His new status as a school board member created obvious conflict of issue problems with his representation. The plaintiffs were ultimately represented by the Rochester firm of Faraci & Lange, and by court order Mr. Argentieri was barred from all contact with the case except for the scheduling of initial depositions and the final division of attorneys' fees.

The case was eventually settled. On February 12, 2002, Mr. Argentieri applied to the Board under the Freedom of Information Law for all records concerning the case, including depositions, sworn statements, and tape recordings of school administrators. The FOIL request was denied with a reference to the order barring Mr. Argentieri from participating in the case. That denial contained a notice that it could be appealed within 10 days to the Superintendent of Schools. The petitioner did not do this. Instead, he brought the present proceeding.

The petition makes no claim to any special status as a member of the School Board, stating only that the petitioner had asked for these materials at an executive session of the School Board and was advised to get a court order. Mr. Argentieri goes on to argue that after the settlement of the lawsuit any private citizen had the right to review the file. His interest is to determine if indeed the administration did not know that the janitor had been accused of pedophilia, as the defense apparently claimed.

The Board replies that the settlement agreement included a confidentiality clause. It also argues that Mr. Argentieri failed to exhaust administrative remedies, that the material insofar as it contains school records is not disclosable without parental consent and its disclosure would be an unwarranted invasion of privacy, that the attorney's files are not in their possession or control--the attorney having been engaged by the Board's insurance carrier, Utica Mutual--and finally that the material is subject to the attorney client privilege.

The petition must be dismissed. Indeed, there are two very good reasons for dismissing this proceeding. The first is the obvious failure to exhaust administrative remedies. The petitioner was adequately informed of this requirement in the form letter denial that he received. As the Board's attorney noted at oral argument, this requirement is strictly enforced by courts. The Fourth Department recently stated, "The exhaustion of administrative remedies is a condition precedent to the commencement of an article 78 proceeding." (DiPietro v State Ins. Fund, 206 AD2d 211, 214-215). Petitioner claims that the superintendent's refusal to supply the material, given at the Board's executive session, relieves him of the responsibility for undertaking an appeal that he knew would be denied. This is incorrect. The petitioner's opinion as to the likely outcome of a mandated procedure does not make the procedure any less mandatory.

At oral argument petitioner claimed that he had a second basis for obtaining these records, because he was acting in his capacity as a member of the School Board. What legal theory supported this claim was never made clear. It is clearly wrong to argue that he himself "employed" the Superintendent of Schools, as Mr. Argentieri asserted. He is a member of the Board and not the Board itself. In any event, this argument cannot be considered because it was not contained in the petition. That document took the position that Mr. Argentieri's rights were those of any citizen under FOIL, and he is limited to that stance. The court is not empowered to hear any theory that is not contained in the petition (Farrell v Johnson, 266 AD2d 873; see generally, Crawford v Kelly, 124 AD2d 961).

This in itself is sufficient to determine the issue. Nonetheless, the court wishes to add that there is a significant inconsistency between the request and the nature of the material sought. The Freedom of Information Law seeks to open up the deliberative and decision-making processes of government. To that end it grants access in most cases to governmental and agency records, defined thus:

"Record" means any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever (Public Officers Law § 86 [4]).

This does not include, for example, court records such as a subpoena and the material pursuant to the subpoena (see Newsday, Inc. v Empire State Dev. Corp., 283 AD2d 182, a case in which leave to appeal has been granted).

The court has found no case considering the question of whether an attorney's file prepared in the course of representing a public body should be considered a record of that body. If it were necessary to decide this point it would answer that question in the negative. The material prepared for litigation is not required for the School Board acting in its governmental function. (It may be useful to recall the distinction elsewhere in the law, such as tort liability, between the governmental and proprietary functions of a body.) Furthermore, the respondent is entitled to the same attorney-client privilege that any other client would have. The legislative intention behind the Freedom of Information Law would not seem to encompass this material, which in any event is not in the control of the Board.

Arguments were made in court about a supposed confidentiality agreement. This, too, is a matter of ordinary law. Such material on file in the Steuben County Clerk's office is available to the petitioner as it is to all members of the public. If a confidentiality agreement exists petitioner may be able to challenge it; but he cannot do so without the participation of all parties to that agreement, and he cannot do it in this court. As the lawsuit involved minors, the court which approved the settlement would be the only one with jurisdiction.

Finally, while the court has accepted the late reply papers, they play no part in the decision. The validity of Mr. Argentieri's concerns are not relevant to his FOIL request, because this particular request does not require any balancing between his interests and those of the body from whom material is sought. He has failed to satisfy a condition precedent to this proceeding, and his request, moreover, is not for material discoverable under FOIL. The petition is therefore dismissed on the law, with costs. Counsel for respondents may prepare the order.

DATED: Rochester, New York

April 25, 2002

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New york Law journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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