results Lobbyists and Clients are required to publicly disclose information about business relationships with certain State Persons. These instructions clarify the Reportable Business Relationship reporting requirements; for further information, see JCOPE s Guidelines. What is a Reportable. Reportable Business Relationship Guidelines for Lobbyists and Cli. of certain lobbyists and clients when disclosing their lobbying activities to JCOPE.
On April 6,Campaign voluntarily submitted additional documents in relation to those interviews. On April 22,JCOPE issued a second subpoena duces tecum, demanding all documents relating to expenses, income, and correspondence sent in response to donations received, from November 5, to the date of compliance. On May 6,Campaign sent a letter to JCOPE stating that it would not produce any more documents pursuant to the subpoena and that it would not comply with the subpoena. Arguments of the Parties JCOPE asserts that Campaign waived its objections to the subpoenas by partially complying with the first and by not timely moving to quash the second.
On the merits, JCOPE contends that it possesses the requisite statutory power to examine the documents in question to determine whether Campaign violated the Lobbying Act by lobbying without registering as a lobbyist.
With respect to the subpoena, Campaign has asserted that several of the documents sought by the subpoena are protected by various privileges, including the deliberate process, proprietary trade secrets, attorney-client, attorney work product, and common interest.
Analysis Campaign Is Not Precluded from Seeking a Protective Order or to Quash Campaign did not waive its right to seek a protective order and its cross-motion to quash is timely. By asserting potential objections and privilege claims to the subpoena in its September 28, letter and requesting JCOPE withdraw the subpoena in its May 6, letter, Campaign has complied with the requirements of CPLR Thus, it can bring a motion for a protective order limiting the subpoena and a motion to quash the subpoena.INSPIRING RELATIONSHIP QUOTES
JCOPE's arguments to the contrary lack merit. It asserts that Campaign waived its right to move for a protective order limiting the subpoena from requiring production of privileged materials, and to quash the subpoena because Campaign partially complied with the subpoena and never timely filed a motion to quash either subpoena. JCOPE argues that "[a] motion to quash or vacate. However, Brunswick is not analogous to this case: Both subpoenas here are "non-judicial" subpoenas, not returnable in court, and as such are subject to CPLR Campaign has not established that any of the documents it has withheld are privileged or that the subpoena is unduly intrusive, burdensome, or persecutory.
But because Campaign has raised a question of fact requiring judicial review whether the attorney work product privilege applies to four documents, Campaign must submit those documents for in camera review. The agency seeking to enforce a non-judicial subpoena must show that it has the authority to issue the subpoena, that the materials sought "bear a reasonable relation to the subject matter under investigation and the public purpose to be served," and a factual basis for the subpoena Myerson v Lentini Bros.
A by a public official, or by a person or entity working in cooperation with a public official related to a governmental procurement. Campaign argues that these requests are overbroad and unduly burdensome. Campaign also asserts that several documents sought under Requests 18 and 21 are exempted from disclosure by the deliberative process, proprietary trade secret, attorney-client, attorney work product, and common interest privileges.
JCOPE's Requests 18 and 21 Are Not Improper JCOPE has shown that it has the authority to investigate and issue subpoenas, that the documents it seeks are reasonably related to the subject of its investigation, and that a factual basis supports the subpoena. And Requests 18 and 21 bear a reasonable relation to JCOPE's investigation, given that they seek communications and records of meetings between Campaign and the Mayor. The Mayor is a public official.
JCOPE's prior lobbying activities in and admittedly close relationship with the Mayor provide an ample factual basis to support Requests 18 and 21 of the subpoena. Thus the requests for documents regarding meetings and communications with the Mayor in the subpoena were lawful. The Court rejects the argument that, because Campaign interprets the subject matter of the documents subpoenaed under Requests 18 and 21 to fall outside the definition of lobbying, JCOPE lacks authority to issue those requests.
Campaign's reasoning in this regard is circular. It insists that, because it asserts that it did not lobby the Mayor, but only advised him, JCOPE is precluded from obtaining communications between the Mayor and Campaign.
REPORTABLE BUSINESS RELATIONSHIP INSTRUCTIONS
It may be that the documents in question do not show any lobbying activity. Matter of Nicholson v State Commn. Conduct, 50 NY2d [merits of judicial campaign misconduct inquiry not before Court in proceeding challenging agency's authority to continue inquiry]. Campaign's Asserted Privileges In addition to its overarching argument that the communications contained in documents it withheld do not meet the definition of lobbying, Campaign asserts a number of privileges.
Bank, 78 NY2d. Campaign has not established that any of the documents it seeks to protect are privileged. However, Campaign must submit four documents for in camera review, as Campaign has raised a question of fact as to whether the attorney work product privilege applies to those documents. The Deliberative Process Privilege Campaign attempts to shield 41 documents with the deliberative process privilege.
But, because it is not a governmental agency, it does not have the right to assert the deliberative process privilege. As codified, the privilege shields from FOIL disclosure inter-agency or intra-agency materials that are prepared to assist a government agency's substantive decision-making process Pub.
The privilege has also been applied to subpoenas to protect documents containing "advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated" for the purpose of "enhanc[ing] the quality of agency decisions, by protecting open and frank discussion among those who make them within the Government" Matter of World Trade Ctr.
Although the language of FOIL only protects inter-agency and intra-agency materials, the Court of Appeals has extended the privilege to extend to materials prepared for a government agency, at its request, "by an outside consultant" Matter of Xerox Corp.
Where a governmental agency seeks to privilege information provided by an outside consultant, the outside consultant should not be representing its own interest, or the interest of its other clients, when it provided its opinion to the governmental agency Matter of Town of Waterford v New York State Dept.
Because the privilege protects the deliberative processes of the government agency it affects, it must be invoked by that agency, not the private entity acting on the agency's behalf. According to the Southern District of New York, "[g]overnmental privilege must ordinarily be invoked by a department head or other responsible agency official, after a personal review of the documents, in an affidavit stating a factual basis for the claim of injury to legitimate government interests flowing from disclosure" Grossman v Schwarz, FRD[SDNY ]; see Matter of World Trade Ctr.
The party invoking the privilege must demonstrate "what interests would be harmed, how disclosure under a protective order would cause the harm, and how much harm there would be" Grossman, FRD at [internal quotation marks omitted]. Once the governmental agency has demonstrated the applicability of the privilege, the Court must balance the agency's interests against the interests mitigating in favor of disclosure id. Wolfe therein expresses a belief that the documents withheld by Campaign "are entitled to protection under the deliberative process privilege.
Wolfe never expressly invokes the privilege or asserts that the Mayor has invested her with authority to invoke it. Nor has the Mayor's Office attempted to intervene in order to protect the documents in question, despite having notice, as evidenced by the Wolfe affidavit. Assuming without deciding that the Mayor's Office has properly invoked the deliberative process privilege see id. For each class of documents—a draft of a public opinion survey, discussions of focus-group methodology, survey results, and discussions of political strategy—Ms.
Wolfe offers the conclusory justification that disclosure will chill deliberations. She does not explain how the harm will occur or the scope of the harm see id. Wolfe's affidavit and its vague descriptions of the documents.
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Campaign's communications with the Mayor are directly relevant to JCOPE's investigation into whether it lobbied without registering. So, to the extent the deliberative process privilege is applicable to the documents in question, the governmental interest in viewing them would outweigh the governmental interest in protecting them see Grossman, FRD at — Accordingly, the Court rejects Campaign's reliance on the deliberative process privilege to shield subpoenaed documents.
Proprietary Trade Secrets Campaign has not met its burden of establishing that 19 documents are privileged as trade secrets. Generally, proprietary trade secrets will be shielded from disclosure "except to the extent that [disclosure] appears to be indispensable for ascertainment of the truth" Drake v Herrman, NY. A proprietary trade secret is "'any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it'" Ashland Management Inc.
A conclusory statement in an attorney's affidavit that a document contains trade secrets is insufficient to meet the burden required to assert the privilege see New York State Businessmen's Group, Inc. Campaign has not made any showing of how the information contained in the documents over which it asserts the privilege gives it, a not-for-profit partner of the Mayor's Office, a competitive advantage.
Campaign told JCOPE in its December 22, letter that the documents over which it asserted the privilege contained "formulation of plans for surveys and other research," created at the Mayor's request. This unsworn, unsupported, and unelaborated assertion is insufficient to meet Campaign's burden see id. Therefore, Campaign must disclose all documents it has withheld as containing proprietary trade secrets. Attorney-Client Privilege Of the eight documents over which Campaign asserts the attorney-client privilege, six are not protected because a third party was present at the communication.
And Campaign has not demonstrated that the communications in the remaining two were predominantly of a legal character. The attorney-client privilege prevents confidential communications made between the attorney and the client in the course of professional employment from being disclosed CPLR. However, due to the "obvious tension" between full disclosure and protecting attorney-client communications, the privilege must be narrowly construed CPLR [a]; Ambac Assur.
A communication is not confidential if it is "made in the presence of third parties, whose presence is known to the client" id. Further, "[t]he privilege is. Campaign's privilege log simply identifies C41NY as "Bill Hyers email chain" and its subject matter as "To schedule phone call. In sum, Campaign has not demonstrated that attorney client privilege applies to any of the documents it has withheld. What is "Requisite Involvement"?
When you know or have a reason to know. Reason to know is based on an examination of the totality of the facts and circumstances. If a reasonable person looking at all the facts and circumstances would conclude that the filer should know that an individual is a State Person or has the Requisite Involvement with the relevant entity, then the reason to know standard has been satisfied.
For more information, see FAQs or the Guidelines. Compensation includes a salary, fee, gift, payment, benefit, loan, advance, or any other thing of value. Compensation does not include: Below is the rule to help determine if this threshold has been met. When multiple relationships exist with the same State Person or the same entity in which a State Person has the Requisite Involvement, the value of goods, services, or anything of value of all such relationships must be aggregated.
What happens, for instance, if the goods or services have been provided, but I have not yet paid for them? What happens if I have already paid the Compensation, but the goods or services have not yet been provided to me? In order for the relationship to be reportable, it must be in existence at any time during the filing period biennial for lobbyists, semi-annual for clients. A relationship exists if during the reporting period any of the following are present: Are there any types of relationships that are excluded from the reporting requirements?
Even if all the criteria for a RBR are met, a relationship in which a lobbyist or client of a lobbyist provides Compensation to a State Person or an entity in which the State Person has the Requisite Involvement, or a third party as described above for any of the following services does not need to be reported: Treatments for medical, dental, and mental health services; Legal services with respect to: