Matter of Whitehead v Warren County

[*1] Matter of Whitehead v Warren County 2023 NY Slip Op 50545(U) Decided on May 31, 2023 Supreme Court, Warren County Muller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 31, 2023
Supreme Court, Warren County

In the Matter of G. Travis Whitehead, Petitioner,

against

Warren County, Respondent, For a Judgment Under Article 78 of the Civil Practice Law and Rules.



Index No. EF2022-70462



Government Justice Center, Albany (Cameron J. Macdonald of counsel), for petitioner.

Lawrence Elmen, County Attorney, Lake George (Ryan J. Dickey of counsel), for respondent.
Robert J. Muller, J.

On October 15, 2021, petitioner attended a meeting of respondent's Board of Supervisors and spoke during the public comment period, stating as follows:

"I believe anyone who hopes to hold a public office would allow public disclosure of their public records. I want you to witness that after earlier trying to contact Brent McDevitt . . . for him to release his drug and alcohol abuse records, he never acknowledged that, and then in asking him today he . . . again — wouldn't acknowledge even my presence. I believe anyone who wants to represent us ought to . . . be free and open about their past and I know that some records are sealed. I'm not asking for any records to be unsealed, but the Department of Corrections and Community Supervision does allow the release of other records — but it requires a signature" (Video of October 15, 2021 meeting, available online at https://warrencountyny.gov/MMA [last accessed May 26, 2023], at 2:53:15).

Petitioner's comments were interrupted when Warren County Supervisor Peter McDevitt (hereinafter Supervisor McDevitt) — Brent McDevitt's father — raised a point of order, stating that "what we have here is an angry irrelevant old man disrupting our meeting and engaging in character assassination" (id. at 2:54:41). Supervisor Michael Wild then raised a second point of order, following which the Board of Supervisors voted to adjourn the meeting and petitioner was [*2]precluded from any further commentary. According to petitioner, immediately following the meeting Supervisor McDevitt crossed the room and physically accosted him.

On October 17, 2021, petitioner filed a complaint against Supervisor McDevitt under the Warren County Workplace Violence Prevention Plan and Program (hereinafter the Workplace Violence Prevention Plan). A complaint was also filed against petitioner under the Workplace Violence Prevention Plan by another member of the public who was present for the October 15, 2021 meeting.[FN1]

After reviewing the complaints, the Acting County Attorney for the County of Warren — Robert Terwilliger, Esq. — had some concerns relative to whether the alleged incidents fell within the purview of the Workplace Violence Prevention Plan. Terwilliger was also concerned that, because he was present at the October 15, 2021 meeting and witnessed the incident, he could have "an actual or apparent conflict of interest." As such, on October 28, 2021 he retained the law firm of Bartlett, Pontiff, Stewart & Rhodes, P.C. (hereinafter BPSR) to assist in handling the complaints.

The Workplace Violence Prevention Plan in place at the time of the incident is contained in Warren County Resolution No. 337 of 2020 and provides, in pertinent part:

"Allegations of workplace violence are treated seriously by the County and all reports of threats of violence, actual violence and suspicious activities will be promptly and thoroughly investigated. The investigation will be conducted in such a way as to maintain confidentiality to the extent practicable under the circumstances. . . . "The results of the investigation shall be communicated in writing to both the person filing the complaint and the accused party. Findings of wrongdoing resulting from such investigation will be reported to the Personnel Committee in executive session within sixty (60) days, provided no delay to allow for law enforcement investigation is necessary."[FN2]

On March 4, 2022, petitioner sent an email to respondent pursuant to the Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]) requesting a "copy of the report produced by [BPSR] regarding the incident on 10/15/21 as promised to me in the [Workplace Violence Prevention Plan]." The Warren County Administrator — Ryan Moore — and the Warren County Attorney — Lawrence Elmen, Esq. — then sent correspondence to petitioner on March 29, 2022 stating as follows:

"[Your] complaint was . . . investigated, and pursuant to the [Workplace Violence Prevention Plan], the results of such investigation are to be communicated in writing to both the person filing the complaint and the accused party. The result of the investigation is that the Warren County Board of Supervisors took no action with respect to your filed complaint. "Additionally, [name redacted] filed a complaint against you under the [Workplace [*3]Violence Prevention Plan]. . . . The complaint was . . . investigated, and the result of the investigation is that the Warren County Board of Supervisors took no action with respect to her filed complaint."

Respondent thereafter denied petitioner's FOIL request to review BPSR's report on April 6, 2022, citing Public Officers Law §§ 87 (2) (a), (b), and (g). Petitioner administratively appealed this determination and, on April 21, 2022, it was affirmed.

On August 19, 2022, petitioner commenced this CPLR article 78 proceeding for a judgment declaring that respondent acted unlawfully in failing to produce the report in response to his FOIL request. Petitioner also seeks counsel fees and costs (see Public Officers Law § 87 [4] [c]). Oral argument was held on May 26, 2023, at which time the Court requested a copy of the report for in camera review (see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 378 [1991]). This copy has now been provided.

At the outset, to the extent petitioner's March 4, 2022 email appears to infer entitlement to the report under the terms of the Workplace Violence Prevention Plan, counsel for petitioner clarified during oral argument that the instant proceeding only seeks disclosure of the report under FOIL.

That being said, "'agency records are presumptively available for public inspection [under FOIL], . . . unless the requested documents fall within one of the exemptions set forth in Public Officers Law § 87 (2)'" (Matter of Empire Ch. of the Associated Bldrs. & Contrs., Inc. v New York State Dept. of Transp., 211 AD3d 1155, 1156-1157 [3d Dept 2022], quoting Matter of Williamson v Fischer, 116 AD3d 1169, 1170 [3d Dept 2014] [internal quotation marks and citations omitted], lv denied 24 NY3d 904 [2014]). "'[E]xemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption'" (Matter of Empire Ch. of the Associated Bldrs. & Contrs., Inc. v New York State Dept. of Transp., 211 AD3d at 1157 [emphasis in original], quoting Matter of Hutchinson v Annucci, 189 AD3d 1850, 1853 [3d Dept 2020] [internal quotation marks and citation omitted]).

Turning first to Public Officers Law § 87 (2) (a), this section provides that an "agency may deny access to records or portions thereof that are specifically exempted from disclosure by state or federal statute." According to respondent, the report contains "legal analysis and legal recommendations" and is therefore privileged under CPLR 4503 (a), which protects "confidential communication[s] between [an] attorney . . . and the client in the course of professional employment." Petitioner, however, contends that BPSR was retained not only to provide legal analysis and recommendations, but also to conduct an investigation relative to the complaints. According to petitioner, the investigative portion of the report must be disclosed.

Upon review of the report, the Court finds the Court of Appeals' decision in Spectrum Sys. Intl. Corp. v Chemical Bank (supra) to be particularly instructive. There, Spectrum Systems International Corporation (hereinafter Spectrum) — a computer software consulting firm — provided services to Chemical Bank (hereinafter Chemical) until the spring of 1987. Chemical's general counsel thereafter retained the firm of Schulte Roth & Zabel (hereinafter Schulte Roth) "to perform an investigation and render legal advice to Chemical regarding possible fraud by its employees and outside vendors, and to counsel Chemical with respect to litigation options" (id. at 375). Over the ensuing months, Schulte Roth "conducted interviews of Chemical employees, of a former officer responsible for the bank's arrangements with Spectrum, and of representatives [*4]of Spectrum itself" (id.). Schulte Roth then prepared a report, described by the Court of Appeals as follows:

"In a letter report dated August 20, 1987, . . . the law firm summarized the results of its investigation. After three pages of narrative regarding the central problem and the facts bearing on it, the final paragraph of the Spectrum section sets forth the law firm's opinion as to a possible claim against Spectrum, an estimate of Chemical's damages, a potential weakness if such a claim were to be asserted, and the firm's view that there was insufficient proof to establish particular matters described in the letter. The report was addressed to Chemical's vice-chairman — the company's senior legal officer — with copies to Chemical's general counsel and senior auditor."

Spectrum subsequently commenced an action to recover certain fees and sought the production of documents pertaining to Chemical's internal investigation. Chemical moved for a protective Order relative to the report, asserting that it was protected by attorney-client privilege. In considering this issue, the Court of Appeals stated the relevant rule as follows:

"Although typically arising in the context of a client's communication to an attorney, the privilege extends as well to communications from attorney to client. The privilege is of course limited to communications — not underlying facts. In order for the privilege to apply, the communication from attorney to client must be made for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship. The communication itself must be primarily or predominantly of a legal character" (id. at 377-378 [citations and internal quotation marks omitted]).

The Court of Appeals then proceeded to find that the report was protected by attorney-client privilege (id. at 379). In this regard, the Court first observed that "the requisite professional relationship was established when Chemical retained the law firm to render legal assistance (id. at 378). The Court further stated:

"The report itself, after presenting facts, sets forth the firm's assessment regarding a possible legal claim, its approximate size and weaknesses. As a confidential report from lawyer to client transmitted in the course of professional employment and conveying the lawyer's assessment of the client's legal position, the document has the earmarks of a privileged communication."The arguments against privilege in this case center on Schulte Roth's conceded investigative function, which led the Appellate Division to conclude that the report and other documents were not clearly communicated by counsel in the role of attorneys rendering legal advice. In the Appellate Division's view, the report was aimed at assisting Chemical in its business operations, as by suggesting measures to prevent future corruption and terminate or discipline implicated employees. We disagree."That nonprivileged information is included in an otherwise privileged lawyer's communication to its client — while influencing whether the document would be protected in whole or only in part — does not destroy the immunity" (id.).

Here, the requisite professional relationship was established when Terwilliger retained BPSR to investigate the complaints and provide legal recommendations with respect to how the complaints should be handled. The report itself — authored by Jessica Hugabone Vinson, Esq., [*5]then a partner at BPSR, and sent to the County Attorney and the County Administrator — first presents a summary of the complaints and the interviews conducted. The report then proceeds to analyze the language of the Workplace Violence Prevention Plan and whether — based on the complaints and the statements made during the interviews — petitioner and the other complainant had standing under the Workplace Violence Prevention Plan. The report further analyzes what, if any, action should be taken relative to the complaints.

"The critical inquiry is whether, viewing the lawyer's communication in its full content and context, it was made in order to render legal advice or services to the client" (id. at 379). Under the circumstances, the inescapable conclusion is that the "facts were selected and presented in the [BPSR] report as foundation for the law firm's legal advice, and . . . the communication was primarily and predominantly of a legal character (id. at 380). Indeed, even when narrowly viewing the exemption set forth in Public Officers Law § 87 (2) (a) so as to provide maximum access (see Matter of Empire Ch. of the Associated Bldrs. & Contrs., Inc. v New York State Dept. of Transp., 211 AD3d at 1157; Matter of Hutchinson v Annucci, 189 AD3d at 1853), the Court must find that the report is protected by attorney-client privilege and exempt from disclosure under FOIL (see Public Officers Law § 87 [2] [a]; CPLR CPLR 4503 [a]; see also Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 379 [1991]; Rossi v Blue Cross & Blue Shield of Greater NY, 73 NY2d 588, 594 [1989]).

Based upon the foregoing, the Court need not address the parties' remaining arguments under Public Officers Law §§ 87 (2) (b) and (g).

Insofar as petitioner's request for counsel fees and costs is concerned, a "'court in a FOIL proceeding shall assess, against such agency involved, reasonable counsel fees and other litigation costs in any case in which such person has substantially prevailed and the court finds that the agency had no reasonable basis for denying access to the records sought'" (Matter of Prisoners' Legal Servs. of NY v New York State Dept. of Corr. & Community Supervision, 209 AD2d 1208, 1213 [3d Dept 2022], quoting Matter of Aron Law PLLC v Town of Fallsburg, 199 AD3d 1286, 1290 [3d Dept 2021] [internal quotation marks, brackets, ellipses and citation omitted]). To the extent that petitioner has not prevailed, the Court declines to award counsel fees and costs.

Therefore, having considered NYSCEF document Nos. 1 through 8 and 11 through 17, as well as having considered the BPSR report in camera, and having heard oral argument on May 26, 2023 with Cameron J. Macdonald, Esq. appearing on behalf of petitioner and Ryan J. Dickey, Esq. appearing on behalf of respondent, it is hereby

ORDERED AND ADJUDGED that the relief requested is denied and the petition is dismissed in its entirety.

The original of this Decision, Order and Judgment has been e-filed by the Court. Counsel for respondent is hereby directed to serve with notice of entry.

Dated: May 31, 2023

Lake George, New York

____________s/____________________

ROBERT J. MULLER, J.S.C.

ENTER: Footnotes

Footnote 1:This complaint is largely irrelevant to the issues presently before the Court.

Footnote 2:While respondent subsequently amended the Workplace Violence Prevention Plan by Resolution No. 10 of 2022 — presumably in response to the incident under consideration — the amended version is not applicable here.