FOIL and the Court System's Memos to Judges: NYCLU v OCA (1st Dept 2026)

On September 29, 2026, the Appellate Division, First Department, unanimously affirmed an order requiring the New York State Office of Court Administration to release 22 memoranda that its Counsel’s Office had sent to judges of the Unified Court System. The memoranda give legal guidance on statutes and decisions. Take a personal injury lawyer in Mineola with a case commenced after the 2026 tort reform took effect. The lawyer’s question is practical: if the court system’s lawyers have explained a new statute to the judges, can the bar read the explanation too?

What the memos are and why litigators care

The case began with one leaked document. In 2021 the First Department decided Crawford v Ally, 197 AD3d 27 (1st Dept 2021), which held, in the Court of Appeals’ summary, “that due process requires an evidentiary hearing prior to issuance of certain temporary orders of protection.” A memorandum discussing that ruling, labeled “Confidential/Internal Use Only,” went from OCA’s Deputy Counsel of Criminal Justice to several Deputy Chief Administrative Judges. The Court of Appeals described it as a memorandum that “proposed a narrow reading of a recent court decision and had apparently been widely distributed to judges in the Unified Court System.” It later became public.

When reporters asked about it, an OCA spokesperson said it was OCA’s “normal practice” to “issue memos with context on cases that have potential significant operational impacts on the courts.” The New York Civil Liberties Union then asked OCA, under the Freedom of Information Law, for documents interpreting decisions and statutes. By the time the case reached the Court of Appeals, the request had been narrowed to a set both sides agreed was reasonably described: “documents similar in substance to the Crawford Memorandum, circulated between Counsel’s Office and UCS judges.”

Judge Rivera, dissenting in part at the Court of Appeals, named the litigator’s concern: the Crawford Memorandum “denied criminal defense attorneys an opportunity to engage with and rebut OCA’s interpretation of the law in their clients’ cases.” That is a dissent, not a holding. The point still carries into civil practice, where a lawyer arguing a new statute is better placed knowing whether the court system has circulated its own reading.

The 2025 Court of Appeals ruling

The Court of Appeals decided the privilege question on October 21, 2025, in Matter of New York Civ. Liberties Union v New York State Off. of Ct. Admin., 45 NY3d 226 (2025), in an opinion by Judge Halligan. OCA’s position, as the First Department later summarized it, was that all such memoranda were categorically privileged “by virtue of Counsel’s Office’s in-house relationship with UCS as its organizational client.” The Court rejected that position as a blanket rule.

The holding is short: “OCA is not entitled to a blanket exemption for all potentially responsive documents based on a sweeping invocation of attorney-client privilege between its Counsel’s Office and all UCS judges.” The reason is the order of proof. It is “beyond dispute that no attorney-client privilege arises unless an attorney-client relationship has been established,” and OCA had not established one. “Without having identified or produced any documents for in camera review, OCA cannot assert a blanket privilege over the entire universe of potentially responsive documents.”

The Court placed the burden where FOIL puts it: “[t]he burden is on the agency to establish that an exemption applies and, to that end, it must articulate a particularized and specific justification for denying access” (quoting Matter of Reclaim the Records v New York State Dept. of Health, 2025 NY Slip Op 03102). The statute says the same thing; its text is in the card further down.

The majority limited its holding. “In reaching this conclusion, we do not suggest that Counsel’s Office could never establish such a relationship. But we decline to recognize the sweeping, ex ante privilege that OCA claims here.” The matter went back to Supreme Court for review of specific documents, “including by in camera review as necessary.” Judge Rivera would have ordered disclosure without that step: “I dissent and would reverse, full stop.” Chief Judge Wilson took no part.

Consequently, after October 2025 a category label was no longer enough.

What the First Department did on September 29, 2026

On remittal, OCA “submitted 22 documents, similar in kind to the Crawford Memorandum, for in camera review.” Supreme Court, New York County (Lyle E. Frank, J.), held that they were not privileged and ordered disclosure, by an order entered April 2, 2026. A five-justice bench (Scarpulla, J.P., Gesmer, Shulman, O’Neill Levy, Chan, JJ.) unanimously affirmed, without costs, in Matter of New York Civ. Liberties Union v New York State Off. of Ct. Admin., 2026 NY Slip Op 05467 (1st Dept 2026).

The court’s central sentence: “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 “provided no additional evidence or authority supporting its organizational client theory.” The memoranda did not supply the proof either: “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.”

OCA relied on Matter of Appellate Advocates v New York State Dept. of Corr. & Community Supervision, 40 NY3d 547 (2023). The First Department distinguished it in one clause: that was a case “in which the existence of an attorney-client relationship was undisputed.”

The court also refused a fallback argument: 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.” The court added, “we do not reach that issue on the merits.” The decision is marked “uncorrected and subject to revision before publication in the Official Reports.”

For everyone outside the case, the useful part is the reasoning: privilege is proved with evidence of a relationship, and the agency carries the proof.

What the decision does not hold

The decision does not say that every memorandum Counsel’s Office sends a judge must be released. It says OCA did not carry its burden “on this record,” and the Court of Appeals left room for a better-proved claim.

Three questions remain open. The first is the exemption for inter-agency and intra-agency materials. Because OCA abandoned it, no court in this case decided whether a guidance memorandum fits it, or whether the statute’s carve-outs for “instructions to staff that affect the public” and “final agency policy or determinations” would apply. The second is the attorney work-product privilege, which the Court of Appeals had “no occasion to address” because OCA did not raise it there. The third is a narrower kind of document. According to the dissent, NYCLU conceded that the privilege “would apply to documents related to OCA Counsel’s Office’s advice or its representation of individual judges as named parties in litigation.”

Consequently, a future refusal will be argued on the documents themselves. Expect OCA to name an exemption for each record it withholds, and test the claim against these two opinions.

What stays confidential, and why

OCA argued that disclosure threatened the confidentiality of judges’ deliberations with their law clerks and court attorneys. The First Department answered: “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.” The court cited Public Officers Law § 86 and Matter of Newsday, Inc. v Empire State Dev. Corp., 98 NY2d 359, 362 (2002).

The statute’s definition of “agency” ends with the words “except the judiciary or the state legislature.” From that, the court concluded: “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.”

Neither decision explains where the line falls between OCA’s records and the judiciary itself; both courts decided NYCLU’s request under FOIL’s exemptions, after OCA had answered it through a Records Access Officer and an Appeals Officer. Consequently, a FOIL request does not reach a judge’s deliberation with chambers staff. What it can reach are the records Counsel’s Office sends out as guidance, unless OCA proves an exemption.

How to request records from OCA

The procedure is in Public Officers Law § 89, and it is the one NYCLU used. A written request that describes the records reasonably gets an answer, a written denial or an acknowledgment within five business days. A denial is appealed in writing within thirty days. Silence counts as a denial. After the appeal comes a CPLR article 78 proceeding, where the agency carries the burden. The card below collects each rule in the statute’s own words.

For a lawyer in active litigation, the last row matters most: FOIL and CPLR disclosure run side by side. Disclosure inside a lawsuit is its own body of law, covered in our post on the First Department’s litigation funding discovery ruling.

The timeline below follows NYCLU’s request from the leaked memorandum to the September 29, 2026 affirmance, through every level of court.

Keep every request, acknowledgment, denial and appeal with its date, because the thirty-day appeal clock and the article 78 record both depend on them.

A request about the 2026 reform

Back to the Mineola lawyer. Part EE of chapter 58 of the Laws of 2026 took effect May 26, 2026, for actions and proceedings commenced on or after that date. Among its changes, it added the mostly-at-fault bar as CPLR 1411(b) and deleted the 90/180-day category from Insurance Law § 5102(d). Every court applying those provisions is reading new text. Whether Counsel’s Office has written anything to judges about them is not public. A FOIL request is how a lawyer would find out.

Our reading of the two decisions is this. A request for Counsel’s Office memoranda to judges interpreting CPLR 1411(b), since May 26, 2026, tracks the description the parties here accepted as reasonable: guidance similar to the Crawford Memorandum, circulated between Counsel’s Office and judges. If any exist, OCA would have to justify each withholding under § 87(2) with a particularized and specific reason. That is an expectation built on the statute and two opinions, not a promise that anything exists or will be produced; the questions the courts left open could still be raised.

For the Mineola lawyer the work is modest: send the request in writing, describe the records narrowly, and calendar the thirty-day appeal window from any denial.

Bring these to the first call:

• the index number and the court of your pending case;
• the statute or decision you think the court system may have issued guidance on, by section;
• a copy of any FOIL request you sent, with the date you sent it;
• any acknowledgment or denial from OCA, with its date.

Sources

• Matter of New York Civ. Liberties Union v New York State Off. of Ct. Admin., 2026 NY Slip Op 05467 (1st Dept Sept. 29, 2026)
• Matter of New York Civ. Liberties Union v New York State Off. of Ct. Admin., 45 NY3d 226, 2025 NY Slip Op 05784 (Oct. 21, 2025)
• Public Officers Law § 86, § 87, § 89