NEW YORK CIVIL LIBERTIES UNION v. NEW YORK STATE OFFICE OF COURT ADMINISTRATION (2026)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered April 2, 2026, which, on remittal from the Court of Appeals, granted the petition brought pursuant to CPLR article 78 seeking to compel production under the Freedom of Information Law (FOIL) of 22 records submitted for in camera review, unanimously affirmed, without costs.

The Court of Appeals held that respondent Office of Court Administration (OCA) could not assert a blanket, ex ante attorney-client privilege over a category of documents sent from OCA's Counsel's Office to judges of the Unified Court System (UCS) that encompass legal guidance on statutory and decisional law (see Matter of New York Civ. Liberties Union v New York State Off. of Ct. Admin., 45 NY3d 226, 234–235 [2025] ).  Before the Court of Appeals, OCA pointed to a memorandum that had become publicly available interpreting this Court's decision in Crawford v Ally (197 AD3d 27 [1st Dept 2021] ) (the Crawford Memorandum), and unsuccessfully argued, prior to conducting a search, that all similar memoranda would be categorically privileged, and therefore exempt from FOIL (see Public Officers Law § 87[2][a];  CPLR 4503[a][1] ), by virtue of Counsel's Office's in-house relationship with UCS as its organizational client.

On remittal, OCA submitted 22 documents, similar in kind to the Crawford Memorandum, for in camera review.  Supreme Court held that they were not privileged and ordered them disclosed.

On this record OCA has not demonstrated the existence of an attorney-client relationship between Counsel's Office and all UCS judges that would protect the submitted documents.  OCA has provided no additional evidence or authority supporting its organizational client theory.  Contrary to OCA's contention, the 22 documents alone do not prove the existence of an attorney-client relationship any more than did the Crawford Memorandum, which was before the Court of Appeals when it rejected OCA's privilege claim.  Nor do the documents sufficiently bring this case in line with Matter of Appellate Advocates v New York State Dept. of Corr. & Community Supervision (40 NY3d 547 [2023] ), in which the existence of an attorney-client relationship was undisputed (see id. at 234).  Because OCA has not provided evidence or authority supporting an attorney-client relationship between Counsel's Office and all UCS judges acting in their deliberative capacities, beyond what was present in the prior record, it has not met its burden of demonstrating the privilege applies (see Matter of NYCLU, 45 NY3d at 234).

OCA's policy arguments conflate attorney-client confidentiality with the distinct but equally important confidentiality of judicial deliberations, which flows not from an attorney-client relationship, but from a unique judicial privilege which the legislature recognized by removing the judiciary from FOIL's reach (see Public Officers Law §§ 86[1], [c];  Matter of Newsday, Inc. v Empire State Dev. Corp., 98 NY2d 359, 362 [2002] ).  As FOIL does not apply to the judiciary, OCA's concerns about maintaining the confidentiality of judges' deliberation with their law clerks and court attorneys are overstated.

OCA may not revive its arguments relying on FOIL's inter- and intra-agency exemption (Public Officers Law § 87[2][g] ), which OCA abandoned before the Court of Appeals (see Matter of NYCLU, 45 NY3d at 234 n 2;  McHale v Anthony, 41 AD3d 265, 266–267 [1st Dept 2007] ).  Accordingly, we do not reach that issue on the merits.