Buffalo Public Schools officials have refused to release to The Buffalo News a copy of an investigator's report that led to the firing of a grants administrator in late June.
District officials, in both their initial denial of the request and their subsequent denial of the News' appeal of that decision, said the report is protected by attorney-client privilege – an assertion that the state's leading authority on open government says is incorrect.
The News on July 3 requested, under the state's Freedom of Information Law, a copy of the investigator's report regarding the activities of Debbie Buckley, the former assistant superintendent of federal and state programs.
She was escorted out of City Hall last September and suspended. Six weeks later, the School Board voted to hire Bond, Schoeneck & King to investigate issues related to her activities as the person overseeing $100 million in grants to the district.
In June, the board voted to fire Buckley, after receiving a lengthy report from the investigators.
Nathaniel Kuzma, the district's assistant legal counsel, denied The News' request for a copy of the report on July 11.
"That information is protected by the attorney-client privilege," he wrote.
"The report you are requesting was, in fact, prepared by counsel for the Buffalo City School District Board of Education, who is the client. Based on this, the district is denying your request to obtain the investigator's report."
The News appealed the decision, noting that the state's expert on open government said the report is not protected by attorney-client privilege.
Robert J. Freeman, executive director of the state's Committee on Open Government, said that the fact it was an attorney who prepared the report does not mean the document is protected by attorney-client privilege.
To say that it is, Freeman said, would be "a stretch."
Any investigator could have compiled the report, he said – the board happened to have chosen a law firm to conduct the investigation.
"There may be portions of the report that include legal advice, and in those cases I would agree that they are protected by the attorney-client privilege," he said.
"But for the other portions of the report that did not require the expertise of an attorney, the attorney-client privilege does not apply."
Superintendent Pamela C. Brown on Friday denied the News' appeal, the vast majority of her letter repeating verbatim what Kuzma's initial denial said.
"After a thorough [review] of the appeal, I am denying your request to obtain the investigator's report for the following reasons," Brown wrote, then reiterated the paragraph Kuzma had written saying that the report was protected by attorney-client privilege.
Margaret M. Sullivan, editor of The News, said the newspaper will pursue release of the report.
"This is information which the public clearly is entitled to under state law. It is a disservice to the public good for the school district to withhold it," she said. "The News will continue to press for its release."
The News also requested a copy of a risk assessment of practices in the district's grants department, which Buckley oversaw. The district did release a copy of that report.
The report, prepared by local accounting firm Drescher & Malecki in October 2011, found "high overall risk in the grants cycle.
Risks occur due to the identification of potentially unusual transactions involving the assistant superintendent of federal and state programs, lack of external review of grant procedures and lack of supporting documentation."
Drescher & Malecki made nine recommendations, all of which they said could be corrected within a year.
Only one – referring to the "potentially unusual transactions" involving Buckley – was considered "urgent."
The nine-page report offered only three sentences regarding its findings in regard to that matter, saying the district had "expanded the scope surrounding this area," an apparent reference to the report.
Six other recommendations were considered "important." They included: having a manager and an administrator on every grant; reassigning the grants office to report through the finance department.
Also, re-evaluating whether it is appropriate to pay parent facilitators' stipends out of Title I funds; clarifying that parent facilitators are independent contractors; obtaining evidence that vendors have completed their contracted work before paying them; and providing annual ethics training to all district employees.