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Request Type: General FOIL Request
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 Submit a FOIL Request Description of Record(s) Sought: Regarding the AOG Section 63(8) Investigation into Sexual
Harassment Allegations Against Former Governor Andrew Cuomo,
 My Request Center the Daily News is seeking the unredacted written memorandums
prepared by the Special Deputies and Special Assistants to the First
 Return to NYS OAG FOIL Deputy Attorney General for all 179 persons interviewed in the
investigation and a list of the names and dates of the interviews.
Electronic versions of these written memorandums and the list of
Top FAQs names and dates will suffice. The probe was conducted from March
8, 2021 to Aug. 3, 2021, when the final report was published and
How long will it take for me to get Attorney General Letitia James said at a press conference held at
a response to my FOIL request? her Liberty St. office, that “the work of the office of the attorney
general and these special deputies has concluded.” The district
Can the OAG certify the attorneys in Albany, Oswego Nassau, Westchester and New York
"reputation" or "legitimacy" of a counties - having previously been supplied the evidence from the
business through FOIL? OAG - have since all made public declarations that there are no
further law enforcement actions pending in this matter, making the
What is FOIL? materials collected disclosable under the Freedom of Information
Law.
Why are some of the pages I
received redacted? Please include as much specific information relating to the records as
you can, (e.g., complaints regarding XYZ Corp. filed with the Attorney
General's Office from 2005-2006.)

Please note that if we should locate any documents that respond to

your request, and if we provide them in electronic format, we will notify
you of any fee in advance. If we provide paper copies, we will also
notify you of any fee in advance; for paper copies, the first five pages
would be provided free of charge, and the production of the remaining
pages would cost $.25 per page.

New Message Go Back

Messages 4  Print Messages (PDF)

 On 2/28/2022 7:18:50 PM, NYS OAG Support wrote:

 On 2/14/2022 4:45:48 PM, NYS OAG Support wrote:

 On 2/7/2022 12:09:15 AM, NYS OAG Support wrote:

 On 2/7/2022 12:09:15 AM

Request Created on Public Portal

 On 2/28/2022 7:18:50 PM, NYS OAG Support wrote:

Subject: [NYS OAG FOIL Request Center] General FOIL Request :: G000079-020722
Body:
February 28, 2022

RE: Freedom of Information Law (FOIL) Request Reference # G000079-020722

Please be advised that the non-exempt records related to the subject matter of the above-referenced FOIL
request are being reviewed and released outside of FOIL.

Please access the links below to retrieve the records that are currently available.

https://ag.ny.gov/press-release/2021/transcripts-and-exhibits-independent-investigation-sexual-harassment-
allegations

https://ag.ny.gov/press-release/2021/additional-transcripts-exhibits-and-videos-independent-investigation-
sexual
Please be further advised that some of the records that respond to your request are exempt from disclosure and
have been withheld pursuant to:

• Public Officers Law § 87(2)(a), which provides that records that are exempted from disclosure by state or
federal statute are exempt from disclosure under FOIL. The records constitute confidential communication[s]
made between attorney and client, which is exempt from disclosure under Civil Practice Law and Rules §
4503(a). See Morgan v. New York State Department of Environmental Conservation, 9 A.D.3d 586, 587 (3rd
Dept. 2004); and

• Public Officers Law § 87(2)(a), which provides that records that are exempted from disclosure by state or
federal statute are exempt from disclosure under FOIL. The records constitute attorney work product, which is
exempt from disclosure under Civil Practice Law and Rules § 3101(c).

You have a right to appeal the foregoing decision. If you elect to do so, you must appeal in writing, within 30
days, to Kathryn Sheingold, Records Appeals Officer. Your appeal can be sent by email to
[email protected] or by mail to State of New York, Office of the Attorney General, Division of
Appeals and Opinions, The Capitol, Albany, New York 12224. You can reach the Records Appeals Officer by
telephone at (518) 776-2009.
Sincerely,

Abisola Fatade

Page 2
Assistant Attorney General

On 2/14/2022 4:45:48 PM, NYS OAG Support wrote:

Subject: [NYS OAG FOIL Request Center] General FOIL Request :: G000079-020722
Body:
February 14, 2022

RE: Freedom of Information Law (FOIL) Request Reference # G000079-020722

Pursuant to Public Officers Law §89(3)(a), the Office of the Attorney General acknowledges receipt of the
above-referenced FOIL request.

We are performing a diligent search for the records you request. We will notify you of the status of your
request on or before March 15, 2022.

If we should locate any documents that respond to your request, and if we provide them in electronic format,
we will notify you of any fee in advance. If we provide paper copies, we will also notify you of any fee in
advance; for paper copies, the first five pages would be provided free of charge, and the cost for the remaining
pages would be $.25 per page.

Sincerely,

Abisola Fatade
Assistant Attorney General

Page 3
 On 2/7/2022 12:09:15 AM, NYS OAG Support wrote:

Re: FOIL Request #G000079-020722

This is an automated reply to your above-referenced FOIL request. Please do not respond to this message.

Within five business days, you will receive a written acknowledgment of the receipt of your request with a
statement of the approximate date when your request will be granted or denied.

New York State Office of the Attorney General

Please visit the NYS OAG FOIL Request Center to view frequently asked questions, submit a new request, or
monitor request progress. You may view this request in the My Request Center.

On 2/7/2022 12:09:15 AM

Request Created on Public Portal

Page 4
 STATE OF NEW YORK
OFFICE OF THE ATTORNEY GENERAL
LETITIA JAMES BARBARA D. UNDERWOOD
ATTORNEY GENERAL SOLICITOR GENERAL
DIVISION OF APPEALS & OPINIONS

(518) 776-2009

April 11, 2022

Daily News

VIA EMAIL:

Re: Appeal re: Freedom of Information Law Request # G000079-020722

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 transcripts
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 Public 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 CAPITOL, ALBANY, NEW YORK 12224-0341 • PHONE (518) 776-2050 • FAX (518) 915-7723 *NOT FOR SERVICE OF PAPERS
WWW.AG.NY.GOV
FOIL Appeal G000079-020722
Page 2

I am 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(c), 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
(3d 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 (3d Dep’t 2019); Matter of Spring v. County of
Monroe, 141 A.D.3d 1151 (4th 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

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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 a
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 (1985).

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’

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FOIL Appeal G000079-020722
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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,

KATHRYN SHEINGOLD
FOIL Appeals Officer

Cc: Committee on Open Government

OAG Records Access Officer