‘STATE OF NEW YORK (OFFICE OF THE ATTORNEY GENERAL Lerma janes Banaara D. UNDERWOOD ArroRNEY OFNERAL SOUCHTORGINERAL \ Divs 0 APPEALS Se OPMIENS. (618) 776-2009 April 11, 2022 “Daily News VIA EMAIL: Re: Appeal re: Freedom of Information Law Request # G000079-020722 nm I write in response to your March 30, 2022 administrative appeal in the above-referenced Freedom of Information Law (FOIL) matter. ‘You submitted a FOIL request relating to an independent investigation of the Office of the Attorney General (OAG) into sexual harassment allegations against former Governor Andrew Cuomo. Specifically, you requested the unredacted written memoranda prepared by the Special Deputies and Special Assistants to the First Deputy Attorney General for the 179 people interviewed and a list of the names and dates of the interviews. ‘The Records Access Officer directed you to the publicly available transeripts of witness interviews on the OAG website. She also explained in writing that other responsive records were excepted from disclosure and were being withheld because they constituted attorney work product, in accordance with Public Officers Law § 87(2)(a) and Civil Practice Law & Rules (CPLR) 3101(c), and as confidential attorney-client communications, in accordance with Publie Officers Law § 87(2)(a) and CPLR 4503(a).. You administratively appeal the Records Access Officer's determination, disputing the applicability of the cited exceptions to disclosure. The Carmo, ALaay, NEw Vouk 122240341 + Puowe (518) 7762050 + Fax (518) 9151725 ‘Nor FoR SERVICE OF ParERSFOIL Appeal G000079-020722 Page 2 Lam herewith disclosing a list of the witnesses whose interview testimony already is public and the dates of their interviews. The remaining responsive records, or portions of them, can properly be withheld under the following exceptions: * Public Officers Law § 87(2)(a) and CPLR 3101(0), as attorney work product. In the FOIL context, attorney work product need not be prepared in anticipation of litigation to be excepted from disclosure. See Matter of Shooters Comm. on Political Educ., Inc. v. Cuomo, 147 A.D.3d 1244 (3d Dep't 2017); Morgan v. N.Y. State Dep't of Envtl. Conservation, 9 A.D.3d 586 (Bd Dep't 2004). The memos reflect the interviewing attorney’s thoughts and impressions of witness testimony and connections with other aspects of the investigation, and, when viewed collectively, reveal the legal strategy of the investigation. They form part of the foundation of the Special Deputies’ rendering a legal opinion to the OAG regarding allegations of sexual harassment by Mr. Cuomo and surrounding circumstances. They thus constitute attorney work product. + Public Officers Law § 87(2)(a) and CPLR 4503(a), as confidential attorney- client communications. In your administrative appeal, you misunderstand the parties to the attorney-client relationship. The basis for asserting the privilege is not the relationship between the interviewer and the witness but the relationship between the interviewing Special Deputy or Special ‘Assistant as attorney and the OAG as the client. And the memos are ‘communications between counsel and client that contain factual information relevant to and intertwined with counsel providing legal advice and legal services to the OAG regarding the allegations against Mr. Cuomo and surrounding circumstances. See Matter of Gilbert v. Office of the Governor, 170 A.D.3d 1404 (8d Dep't 2019); Matter of Spring v. County of Monroe, 141 A.D.3d 1161 (4 Dep't 2016). Even if portions of the memos could be isolated as not either attorney work product or confidential attorney-client communications, records need not be redacted and disclosed when the records are excepted from disclosure under Public Officers Law § 87(2)(a). In re New York Civ. Liberties Union v. New York City Police Dep't, 32 N-Y.3d 556, 568 (2018). © Public Officers Law §§ 87(2)(b) and 89(2)(b), because revealing the identities of witnesses and personal details about witnesses and their families and friends would constitute an unwarranted invasion of theirFOIL Appeal G000079-020722 Page 3 personal privacy. Witnesses were promised that their identities and testimony would be protected to the fullest extent possible and so were encouraged to reveal details about themselves and those around them that they otherwise would have kept private. Many witnesses expressed credible fear of retaliation if their participation or the extent of their cooperation became publicly known. I have balanced the interest of such 2 witness in maintaining the confidentiality of his or her identity and statement against the public interest in knowing them, in light of the OAG having already made publicly available the testimony of the key witnesses. ‘An unwarranted invasion of personal privacy is measured by what would be offensive to a reasonable person of ordinary sensibilities. Matter of New York Times Co. v. City of New York Fire Dep't, 4 N.Y.3d 477 (2005); Matter of Humane Soc'y of United States v. Fanslau, 54 A.D.3d 537 (3d Dep't 2008). ‘A reasonable person of ordinary sensibilities would be offended by the disclosure of his or her identity and confidential testimony given in the course of an investigation of another person, and more so when that person being investigated is a significant public and political figure who has the power to retaliate against a witness. © Public Officers Law § 87(2)(g), because portions of the responsive records— commentary rather than factual data—are intra-agency materials that are not statistical or factual tabulations or data, instructions that affect the public, final agency policy or determinations, or external audits. As Special Deputies and Special Assistants to the First Deputy Attorney General, retained by the OAG to conduct the investigation and produce a written report on behalf of the OAG, the Special Deputies and Special Assistants are considered part of the OAG, and their assessments for the purpose of informing OAG decision-making are eligible for assertion of this exception. ‘See Matter of Xerox Corp. v. Webster, 65 N.Y.2d 131 (1988). With your administrative appeal, you provided a lightly redacted interviewer's memo in your possession. First, I note that you did not receive the memo from the OAG or from an entity authorized to make it public. Indeed, that memo and others were provided to a law enforcement agency that was investigating Mr. Cuomo’s behavior for violations of criminal law only after that agency agreed to protect the identities of individuals discussed in them and the OAG's privileges in the memos. ‘The OAG and the other law enforcement agency shared a common interest in enforcement of laws prohibiting sexual harassment and the memos were shared in furtherance of that interest. The OAG has not waived its privileges with respect to the memos. Second, were the OAG to disclose the memos, we would perform another round of redactions to prevent an invasion of individuals’~~ FOIL Appeal G000079-020722 Page 4 personal privacy. Indeed, it appears that Mr. Cuomo's attorney applied such a redaction to protect the interviewee's privacy in the memo you provided as a sample (page 1, redaction marked “Glavin PLLC’). ‘This is a final agency determination. Please be advised that judicial review of this determination can be obtained under Article 78 of the Civil Practice Law & Rules. Very truly yours, — Wafer ek KATHRYN SHEINGOLD FOIL Appeals Officer Ce: Committee on Open Government OAG Records Access Officer