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At Least Some of the Information In a Report Prepared for the Town by Outside Counsel May Be Subject to Disclosure Because the Attorney-Client Privilege Was Waived to the Extent the Contents of the Report Were Described at a Public Hearing

The Third Department determined that a report prepared for the town by outside counsel was protected from disclosure by the attorney-client privilege.  However that privilege may have been waived to the extent the contents of the report were described at a public hearing:

“Under FOIL, an agency need not disclose documents 'specifically exempted from disclosure by state or federal statute,'” such as those protected by attorney-client privilege (…Public Officers Law § 87 [2] [a]; see CPLR 3101 [b], [c]; 4503 [a] [1]…). Petitioners do not, in fact, dispute that the report was privileged when it was prepared. They instead contend that the privilege was waived when the contents of the report were later disclosed at various Town Board meetings. Accordingly, it was incumbent upon respondents to demonstrate that the privilege had not been waived and that the report remained exempt from disclosure … .

…”[A] client who voluntarily testifies to a privileged matter, who publicly discloses such matter or who permits his [or her] attorney to testify regarding the matter is deemed to have impliedly waived the attorney-client privilege” … . In that regard, outside counsel appeared at a … public meeting and made an extensive oral presentation — apparently at the Town Board's behest — in which counsel set forth his legal analysis of the zoning issues involved. To the extent that the oral presentation parrots the analysis set forth in the report, it may well constitute a waiver of the privilege protecting the contents of the report. … Matter of Loudon House LLC v Town of Colonie, 2014 NY Slip OP 09082, 3rd Dept 12-31-14


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