Why State Agencies Must Disclose "Working Law" and Why It Matters

By Heather Abraham posted 04-09-2021 01:15 PM


This week, the Civil Rights and Transparency Clinic filed an amicus brief in Appellate Advocates v. New York State Department of Corrections and Community Supervision on behalf of Reinvent Albany and the New York Coalition for Open Government.

The Clinic urges the Third Department to require the release of documents that represent an agency's "working law," meaning the agency's own policies or its interpretation of the law it administers, even if the documents are drafted by attorneys working for the agency. An agency develops "working law" whenever it binds itself to interpretations of the law, which is done through interpreting regulations, making determinations, writing manuals, and issuing directives. This is often done by lawyers, but they are not working as attorneys for the agencies in the same privileged relationship that an attorney might have with a traditional client.

This may sound like an ivory tower dispute belonging to academia, but its real-world implications are vast. Agencies interpret and apply laws on civil rights, education, housing, incarceration-namely anything that a state agency touches, which means virtually everything. At even its most basic level, access to an agency's interpretation of the law is necessary to avoid arbitrary governance, and to promote government accountability through democratic means. The public should be able to inquire into the agency's interpretation of the law it administers.

The court's decision in this case will impact whether the public can review most government agency documents drafted by attorneys. A narrow reading of the attorney-client privilege will prevent government agencies from strategically hiding information simply by assigning the work to an attorney. The law belongs to the people, not the government agencies that develop it.

In this particular case, DOCCS is working to prevent the public release of documents used to train the Board of Parole. The Board of Parole has faced longstanding allegations of arbitrary decision-making and racial discrimination. Its training documents provide parole applicants and their loved ones a critical window into the decision-making rules for the Board. 

Like many administrative agencies, the Board of Parole's decisions are rarely overturned by the courts. Because administrative agencies have the power to dramatically impact our lives and operate largely beyond judicial review, the public has an even greater need to know what rules and law administrative agencies apply when exercising discretion.

Special recognition goes to certified student attorneys Keith Jensen and Kyle Ruffner and the Clinic's Assistant Director Michael Higgins for drafting the amicus brief.

The full amicus brief is available here: