Fink v. Lefkowitz
| Citation | 419 N.Y.S.2d 467,393 N.E.2d 463,47 N.Y.2d 567 |
| Parties | , 393 N.E.2d 463, 5 Media L. Rep. 1581 In the Matter of Robert S. FINK, Appellant-Respondent, v. Louis J. LEFKOWITZ, as Attorney-General, Respondent-Appellant. |
| Decision Date | 10 July 1979 |
| Court | New York Court of Appeals |
Petitioner commenced this proceeding to compel release of the office manual of the Deputy Attorney-General and Special Prosecutor for Nursing Homes pursuant to the Freedom of Information Law (Public Officers Law, art. 6). The issue posed is whether certain portions of the manual that reveal confidential methods used for investigating nursing home fraud are exempt from disclosure pursuant to section 87 (subd. 2, par. (e), cl. iv) of the Public Officers Law.
In 1974, amid widespread reports of patient abuse, Medicaid fraud and inadequate governmental supervision of the nursing home industry in the State, the Commissioners of the Departments of Health and Social Services requested the Attorney-General to investigate and prosecute offenses committed in connection with the operation of these health care facilities. Early the following year, Charles J. Hynes was appointed Deputy Attorney-General and Special Prosecutor to lead this investigation into "the rampant corruption in nursing homes" (Matter of Hynes v. Moskowitz, 44 N.Y.2d 383, 396, 406 N.Y.S.2d 1, 8, 377 N.E.2d 446, 453). Subsequently, on February 7, 1975, the Governor promulgated an executive order (9 NYCRR 3.4) pursuant to subdivision 8 of section 63 of the Executive Law significantly expanding the jurisdiction of the Special Prosecutor, directing him to investigate "criminal violations committed in connection with or in any way related to the management, control, operation, or funding of any nursing home" (see Matter of Sigety v. Hynes, 38 N.Y.2d 260, 263-265, 379 N.Y.S.2d 724, 728, 342 N.E.2d 518, 521, cert. den., Kent Nursing Home v. Office of Special State Prosecutor for Health and Social Service, 425 U.S. 974, 96 S.Ct. 2174, 48 L.Ed.2d 798).
Shortly after taking office, the Special Prosecutor compiled a comprehensive office manual entitled "Materials on the Nursing Home Investigation" for the use of his staff. The first three chapters of the manual provided an overview of the nursing home industry, chronicling past abuses which necessitated creation of the office of the Special Prosecutor and explaining the Medicaid reimbursement system. Chapter IV contained a step-by-step guide to an investigation and audit of a nursing home, including specific illustrations of some of the techniques and procedures which had proven successful in detecting nursing home fraud. The final chapter contained a "sample nursing home investigation", featuring the audit and investigative reports that had lead to a successful prosecution by the Deputy Attorney-General.
On February 11, 1977, petitioner, an attorney for several nursing homes, requested a copy of the manual pursuant to the former version of the Freedom of Information Law (L.1974, chs. 578-580). Upon refusal of respondent to disclose the manual, this article 78 proceeding was commenced. Special Term conducted an In camera inspection of the documents and found them to be within the definition of disclosable "administrative staff manuals and instruction to staff that affect members of the public" provided by former section 88 (subd. 1, par. e) of the Public Officers Law. In so holding, the court rejected respondent's assertion that the manual was exempt from disclosure as "part of investigatory files compiled for law enforcement purposes" (former Public Officers Law, § 88, subd. 7, par. d (L.1974, ch. 579, § 3)).
While respondent's appeal was pending before the Appellate Division, there occurred a number of developments which significantly altered the posture of the case. Although the order of Special Term had been statutorily stayed pending appeal (CPLR 5519, subd. (a), par. 1), respondent voluntarily disclosed the first three chapters of the manual as well as substantial portions of chapter IV. In addition, petitioner was informed that the manual had been revised and was furnished with the new pages corresponding to those materials previously disclosed. Most significant, effective January 1, 1978, the Legislature reenacted the Freedom of Information Law (L.1977, ch. 933), clarifying what were perceived to be troublesome areas in the prior law. Both sides agree that the current version of the statute governs resolution of the questions presented on this appeal.
The Appellate Division modified the order of Special Term, concluding that chapter V of the manual and the still undisclosed portions of chapter IV were exempt from disclosure (63 A.D.2d 569, 571, 404 N.Y.S.2d 610, 612). Both sides appealed to this court: petitioner as of right (CPLR 5601, subd. (a)); respondent, seeking to withhold an additional four and one-half pages of chapter IV ordered disclosed by the Appellate Division, by permission of that court (CPLR 5602, subd. (a), par. 1, cl. (i)).
Crucial to the determination of this case is an appreciation of the function of the documents petitioner seeks in the context of the purpose and operation of the Freedom of Information Law. That act, of course, proceeds under the premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government. Thus, the statute affords the public the means to attain information concerning the day-to-day operations of State government. By permitting access to official information long shielded from public view, the act permits the electorate to have sufficient information in order to make intelligent, informed choices with respect to both the direction and scope of governmental activities (see Public Officers Law, § 84). Moreover, judicious use of the provisions of the law can be a remarkably effective device in exposing waste, negligence and abuses on the part of government; in short, "to hold the governors accountable to the governed" (NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 2327, 57 L.Ed.2d 159).
But while the Legislature established a general policy of disclosure by enacting the Freedom of Information Law, it nevertheless recognized a legitimate need on the part of government to keep some matters confidential. To be sure, the balance is presumptively struck in favor of disclosure, but in eight specific, narrowly constructed instances where the governmental agency convincingly demonstrates its need, disclosure will not be ordered (Public Officers Law, § 87, subd. 2). Thus, the agency does not have carte blanche to withhold any information its pleases. Rather it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the court for In camera inspection, to exempt its records from disclosure (se...
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