Freeman: Resort memo could ‘potentially’ be disclosed
SARANAC LAKE – A confidential memo containing legal advice to the village about the Lake Flower hotel project could potentially be subject to disclosure since some of its substance was confirmed by a village official.
That’s according to Robert Freeman, the longtime director of the state’s Committee on Open Government, considered the foremost authority in the state on New York’s Freedom of Information and Open Meetings laws.
The Enterprise asked Freeman to weigh in on the village’s decision Monday to deny a FOIL appeal submitted by an attorney for Roedel Companies, which is restoring the Hotel Saranac and is suing the village Planning Board over its approval of the proposed Lake Flower Resort and Spa, a potentially competing hotel.
Michael Crowe of the Glens Falls-based law firm FitzGerald Morris Baker Firth sought a copy of the memo submitted to the village Planning Board in December of last year by Miller, Mannix, Schachner and Hafner, the Glens Falls-based law firm the village hired to review planning and zoning matters.
The law firm’s memo advised the village that if 203 River St. is removed as a parking area for the Lake Flower hotel project, the developers should ask the village for a variance or an amendment to the Lake Flower Planned Unit Development District, a zoning change the village board enacted for the resort in March 2015. Otherwise, the law firm advised, any subsequent approvals could result in a challenge that would have “a fairly strong legal position” since the village board had specifically included 203 River St. in the PUDD for off-site parking.
The special counsel’s memo was stamped “confidential” but was left in the project’s public file, apparently by mistake, for an unknown period of time. The village later removed the memo from the file, but a person who read it before then, and who wished to remain anonymous, described it to the Enterprise.
In June, village Community Development Director Jeremy Evans confirmed the substance of the memo to the newspaper but declined to provide a copy of it, citing attorney-client privilege.
In July, village Clerk Kareen Tyler denied Crowe’s FOIL request for a copy of the memo. He appealed, and the village board voted Monday to reject the appeal, saying it doesn’t have to provide the memo because it’s “privileged and confidential.”
Freeman said the courts have held that an inadvertent disclosure of records doesn’t mean they aren’t protected by attorney-client privilege and have to be released to the public, citing the 1986 case of McGraw-Edison Company v. Henry Williams, who was commissioner of the Department of Environmental Conservation at the time.
“So-and-so went to an office of DEC, asked for records, saw a whole bunch of records, came back the next day and said, ‘I want to have copies,'” Freeman said. “DEC took a second look and said, ‘Oops, there are certain records you shouldn’t have seen. We’re not going to make those available to you.’ They sued and lost, and the court said an inadvertent disclosure did not create a right of access to the records.”
However, Freeman said this case is different because a village official, Evans, verbally disclosed elements of the legal opinion to the Enterprise.
Freeman reviewed another case, one cited by Crowe in his appeal, in which a developer was denied a FOIL request by the town of Colonie for a report prepared by an outside attorney.
“However, at various public meetings, outside counsel gave an oral presentation on his report, which petitioner claims negated the privilege,” Freeman said, reading his office’s summary of the case. “The court held that an agency that permits its attorney to testify regarding a privileged matter is deemed to have implicitly waived the attorney-client privilege.
“In this instance, and I have no idea how extensive this legal opinion might have been, only to the extent that the comment by the village official involved disclosure of the content of that opinion would there be a waiver (of attorney-client privilege).”
“So that would make it potentially able to be disclosed?” the Enterprise asked Freeman.
“Potentially, yes,” he said. “If no village official had spoken or (if Evans had) simply said ‘No comment’ after the member of the public had seen it, it seems to me the answer would be clear. The disclosure that was made in error would not have created a waiver of the privilege. It would only have been the comment made by the village official that would have opened the door, to some extent.”
Under FOIL, a person whose appeal is rejected can file an Article 78 lawsuit within 15 days of receiving the denial. It’s unclear at this point if attorneys representing Roedel Companies will take that step. Crowe and his colleague Tom Ulasewicz, the lead attorney in Roedel Companies’ lawsuit against the village, didn’t immediately respond to emails seeking comment Tuesday.