No Blanket Attorney‑Client Privilege for OCA‑to‑Judge Guidance Under FOIL: Document‑Specific Showing Required

Introduction

In Matter of New York Civil Liberties Union v. New York State Office of Court Administration, 2025 NY Slip Op 05784 (Oct. 21, 2025), the New York Court of Appeals addressed whether the Office of Court Administration (OCA) may invoke a sweeping attorney‑client privilege to withhold, in gross, internal legal memoranda sent to judges of the Unified Court System (UCS). The case arose after a 2021 OCA memorandum (the “Crawford Memorandum”)—labeled “Confidential/Internal Use Only” and interpreting the First Department’s decision in Crawford v Ally (197 AD3d 27 [1st Dept 2021])—was leaked, and OCA publicly described such memoranda as part of its “normal practice.”

Seeking to understand the breadth of that practice, the New York Civil Liberties Union (NYCLU) submitted a FOIL request for OCA‑created materials, including those from OCA’s Counsel’s Office, distributed within OCA and/or to UCS judges, that summarize or analyze legal authorities. OCA denied the request as overbroad and claimed that any responsive records were exempt as intra‑agency materials and protected by work‑product and attorney‑client privilege. After mixed results in the lower courts, the Court of Appeals reversed the Appellate Division’s dismissal and remitted, holding that OCA cannot assert a blanket attorney‑client privilege covering an entire category of Counsel‑to‑judge communications; rather, any privilege claim must be established on a document‑specific basis. Judge Rivera dissented in part, concluding that, as to adjudicatory guidance to judges, the attorney‑client privilege categorically does not apply and disclosure should be ordered outright.

Summary of the Opinion

• Reasonably described records: Although OCA had challenged the FOIL request as overbroad, at oral argument both parties agreed that there exists an identifiable subset of responsive documents—those similar in substance to the Crawford Memorandum and circulated between OCA’s Counsel’s Office and UCS judges. The Court accepted this narrowed universe as “reasonably described.”
• No blanket privilege: OCA is not entitled to withhold that entire subset based on a sweeping attorney‑client privilege claim between its Counsel’s Office and all UCS judges. OCA failed to meet its preliminary burden to demonstrate an attorney‑client relationship with “all” judges for purposes of a categorical privilege.
• Remittal and in camera review: The matter is remitted to Supreme Court to assess any specific, identified documents for which OCA continues to assert privilege, including by in camera review as necessary. The Court does not reach other exemptions abandoned before it (work‑product; intra‑agency).
• Partial dissent: Judge Rivera agrees that no blanket privilege protects the agreed‑upon subset but would order immediate disclosure, reasoning that no attorney‑client relationship can exist when OCA purports to advise judges in their adjudicatory capacity.

Detailed Analysis

Precedents Cited and Their Influence

• FOIL’s presumption of access and narrow exemptions:
  • Matter of Gould v New York City Police Dept., 89 NY2d 267, 274–275 (1996): All government records are presumptively open; exemptions are narrowly construed; agencies bear the burden to justify withholding. The Court relies on Gould to frame FOIL’s pro‑disclosure baseline and the agency’s burden.
  • Matter of Appellate Advocates v New York State Dept. of Corr. & Community Supervision, 40 NY3d 547, 551–552 (2023): Reaffirms FOIL’s liberal construction and clarifies attorney‑client privilege requirements—communications primarily of a legal character, within a professional relationship—informing the Court’s analysis here.
• “Reasonably describe” standard:
  • Public Officers Law § 89(3)(a); Matter of Konigsberg v Coughlin, 68 NY2d 245, 249 (1986): When an agency claims a request does not reasonably describe the records, it must show the descriptions are insufficient to locate and identify the documents. Here, the parties’ oral‑argument agreement moots broader disputes and anchors the decision to a defined subset.
  • Matter of Reclaim the Records v New York State Dept. of Health, — NY3d —, 2025 NY Slip Op 03102 (2025): Agencies must produce non‑exempt records even if others are exempt; supports the Court’s approach to grant/deny “in whole or in part” and proceed document by document.
• Attorney‑client privilege contours:
  • CPLR 4503(a)(1); CPLR 3101(b): Codifies the privilege and its protection from disclosure.
  • Matter of Priest v Hennessy, 51 NY2d 62, 67–70 (1980); Rossi v Blue Cross & Blue Shield of Greater N.Y., 73 NY2d 588, 592–594 (1989): The privilege’s purpose (uninhibited client candor), its status as an exception to truth‑seeking (narrowly applied), and the need to demonstrate an attorney‑client relationship through “independent facts.” The Court invokes these to hold OCA to its proof burden.
  • Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377–378 (1991): Whether a document is privileged is fact‑specific and often requires in camera review; used by the Court to reject OCA’s categorical assertion and to justify remittal.
  • Matter of Appellate Advocates, 40 NY3d at 553–555: Distinguished; there the attorney‑client relationship was not disputed, whereas OCA’s asserted relationship with “all” judges is unproven here.
  • Third Department cases (e.g., Matter of Gilbert v Office of the Governor, 170 AD3d 1404; Matter of Shooters Comm. on Political Educ., Inc. v Cuomo, 147 AD3d 1244): Illustrative of document‑specific privilege adjudications, not blanket claims.
• Scope of judicial review:
  • CPLR 7803(3); Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, 74 (2017); Matter of Scherbyn v Wayne‑Finger Lakes BOCES, 77 NY2d 753, 758 (1991): Courts review agency determinations based only on the grounds invoked; the majority notes OCA abandoned work‑product and intra‑agency arguments before the Court.
• In camera review and “generic” exemptions:
  • Matter of M. Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, 83 (1984): Supports in camera review as a tool to assess privilege claims.
  • Matter of Lesher v Hynes, 19 NY3d 57, 66–67 (2012): Recognizes that, in limited circumstances, an agency may justify withholding categories of records generically (there, law‑enforcement interference). The Court contrasts that narrow path with OCA’s failure to establish any attorney‑client relationship as a predicate to a categorical claim.
  • Capital Newspapers v Whalen, 69 NY2d 246 (1987); Matter of Fink v Lefkowitz, 47 NY2d 567 (1979): Underscore FOIL’s transparency goals cited in the dissent.

Legal Reasoning

1. Reasonably described subset: While OCA initially argued NYCLU’s request was overbroad, at oral argument both sides agreed that a subset of documents—those similar to the Crawford Memorandum, circulated between OCA’s Counsel’s Office and UCS judges—exists and is identifiable. NYCLU expressly limited its request to that universe. On that basis, the Court concluded the subset is reasonably described and subject to FOIL unless exempt.
2. No ex ante, blanket attorney‑client privilege: OCA urged a sweeping privilege covering all such Counsel‑to‑judge memoranda. The Court rejected this for two interlocking reasons:
   • Failure to establish a relationship: The privilege presupposes an attorney‑client relationship. OCA did not demonstrate, on this record, that its Counsel’s Office has an attorney‑client relationship with “all” UCS judges for purposes of these communications. In contrast to Appellate Advocates—where the relationship was undisputed—OCA’s assertion is unproven and too broad.
   • Document‑specific inquiry required: Privilege determinations are fact‑sensitive, often warranting in camera review. As OCA identified no specific documents for review, a blanket claim is improper.
3. Remand for particularized adjudication: The Court remits so that, if OCA persists, it may assert privilege as to specific documents; Supreme Court can then adjudicate, including via in camera inspection. The Court emphasizes it does not reach work‑product or intra‑agency exemptions, which OCA did not press in the Court of Appeals.

The Partial Dissent (Rivera, J.)

Judge Rivera agrees that no categorical privilege applies but would go further: as to the agreed subset—OCA Counsel’s Office memoranda instructing judges how to interpret and apply the law in cases they adjudicate—no attorney‑client relationship can exist. Judges, as neutral adjudicators, must decide based on law, the record, and parties’ arguments; they cannot rely on confidential OCA advice. On that premise:

• She would order disclosure without remittal, calling in camera review unnecessary and wasteful where the sine qua non of privilege—a qualifying attorney‑client relationship—is absent.
• She underscores FOIL’s openness mandate and contends that confidential guidance to sitting judges raises concerns akin to prohibited ex parte communications (22 NYCRR 100.3[B][6]) and could implicate Judiciary Law § 14 if a judge were viewed as a “client.”
• She recognizes, as does NYCLU, that privilege would properly attach when OCA represents individual judges as parties or provides advice on matters specific to a judge’s own legal interests, but not for adjudicatory guidance memoranda of the type at issue.
• She notes that, even where a portion of a record is exempt, FOIL requires redaction rather than wholesale withholding (Public Officers Law § 87[2]).

Impact and Implications

FOIL Practice and Government Transparency

• Document‑level justification is reaffirmed: Agencies may not shield broad categories of records with generic privilege claims absent a demonstrated predicate relationship and a particularized showing for each document. Expect more in camera reviews when privileges are asserted over internal legal guidance.
• Partial grants favored: The Court again validates FOIL’s “grant‑in‑part/deny‑in‑part” approach, encouraging agencies and requesters to narrow disputes by agreeing to identifiable subsets—often anchored by an exemplar (here, the Crawford Memorandum).
• Clarifying by concession: The Court’s acceptance of the parties’ oral‑argument narrowing signals practical flexibility. Requesters can strategically refine broad requests to avoid “overbreadth” denials and expedite production.

Government Attorney‑Client Privilege in Context

• No “status‑based” privilege with adjudicators: The decision firmly rejects an ex ante privilege based purely on institutional status (Counsel’s Office and “all” judges). Government counsel asserting privilege must prove an actual professional relationship and that the particular communication is predominantly legal and made for the purpose of rendering legal advice.
• Likely lines to be litigated on remand and in future cases:
  • Which memoranda are adjudicatory “guidance” to judges versus administrative, operational, or training materials?
  • When, if ever, do communications between OCA counsel and a judge shift from neutral adjudication to the judge’s personal legal interests (e.g., representation in litigation)—a context where privilege would apply (as the dissent notes and NYCLU concedes)?

Judicial Administration and Ethics

• Transparency pressure on internal guidance: OCA may opt to convert some confidential advisories into public guidance to avoid privilege disputes and ensure parties have equal access to interpretive materials affecting adjudication.
• Ethical guardrails spotlighted: The dissent’s concerns (ex parte analogies, independence and impartiality) may influence how OCA structures communications with judges going forward, even if the majority did not decide those issues.

Litigation Strategy for Requesters and Agencies

• Requesters: Use exemplars to define “documents of the type” sought; propose reasonable time frames and custodians; be prepared to accept partial productions and redactions.
• Agencies: Prepare privilege logs and particularized explanations; avoid categorical assertions where the foundational relationship is contestable; anticipate in camera review and segregate non‑exempt material for release.

Complex Concepts Simplified

• FOIL’s baseline: Government records are open unless a specific exemption applies. The agency must prove an exemption with concrete, document‑specific reasons.
• “Reasonably describe”: Your request has to be specific enough that the agency can find what you want. Think: named sender/recipient, date ranges, topics, or an exemplar memo.
• Attorney‑client privilege (government context): Protects confidential communications for legal advice, but only if there’s a real attorney‑client relationship and the communication is predominantly legal. Saying “we’re all in the same organization” isn’t enough.
• “Blanket” vs. document‑specific claims: A blanket claim tries to cover all records in a category without looking at each one. Courts generally require a record‑by‑record showing (often with an in camera review).
• In camera review: The judge privately inspects the documents to decide if an exemption applies, balancing transparency with legitimate confidentiality.
• Partial disclosure and redaction: If only part of a document is exempt, agencies must redact the exempt portion and release the rest.

Key Takeaways

• New rule in practical effect: OCA cannot rely on a sweeping, status‑based attorney‑client privilege to withhold entire categories of Counsel‑to‑judge memoranda. Privilege claims must be supported by evidence of an attorney‑client relationship and a particularized, document‑specific showing.
• The “Crawford Memorandum” as anchor: The Court treats documents “similar in substance” to that memo, circulated between OCA’s Counsel’s Office and UCS judges, as an identifiable and FOIL‑reachable set—subject to document‑level exemptions.
• Remittal for fact‑specific adjudication: Lower courts should assess any renewed privilege assertions through in camera review where necessary, and order disclosure of non‑privileged materials (with redactions as appropriate).
• Dissent’s bright line: For adjudicatory guidance, the dissent would hold there is no attorney‑client relationship at all, and thus no privilege—favoring immediate disclosure without further review.

Conclusion

Matter of NYCLU v. OCA meaningfully advances FOIL jurisprudence at the intersection of government transparency and the attorney‑client privilege. The Court of Appeals reaffirms FOIL’s pro‑disclosure presumption, rejects an ex ante, blanket privilege over OCA Counsel’s communications to judges, and insists on a document‑by‑document analysis with particularized justifications—often via in camera review. While the majority leaves room for privilege in specific contexts (e.g., where OCA actually represents a judge as a client), the decision sharply curtails categorical secrecy surrounding internal judicial guidance. Judge Rivera’s partial dissent goes further, positing a categorical rule that adjudicatory guidance to judges cannot be privileged because no attorney‑client relationship exists in that context.

Practically, agencies must recalibrate their FOIL responses and privilege practices, and requesters have a blueprint for narrowing and successfully compelling disclosure. Normatively, the opinion underscores that transparency in judicial administration—particularly around interpretive guidance that may affect adjudication—serves the public’s right to know while preserving space for truly privileged legal representation where it exists. The ruling’s central principle is clear: FOIL does not permit secrecy by label; it demands substantiation, record by record.

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Note: This commentary analyzes the Court’s opinion as issued and does not constitute legal advice.