John v. New York State Ethics Com'n

• Decision Date: 26 March 1992
• Citation: 581 N.Y.S.2d 882,178 A.D.2d 51
• Parties: , 20 Media L. Rep. 1575 In the Matter of Susan JOHN, Respondent-Appellant, v. NEW YORK STATE ETHICS COMMISSION, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 882

581 N.Y.S.2d 882

178 A.D.2d 51, 20 Media L. Rep. 1575

In the Matter of Susan JOHN, Respondent-Appellant, v. NEW YORK STATE ETHICS COMMISSION, Appellant-Respondent.

Supreme Court, Appellate Division Third Department.

March 26, 1992.

Robert Abrams, Atty. Gen. (Patrick Barnett-Mulligan, Peter G. Crary, of counsel), Albany, for appellant-respondent.

Paul M. Whitaker, Albany, for respondent-appellant.

Before: WEISS, P.J., and LEVINE, MERCURE, MAHONEY and CASEY, JJ.

WEISS, Presiding Justice.

Cross appeals from a judgment of the Supreme Court (Torraca, J.), entered January 23, 1991 in Albany County, which partially granted petitioner's application, in a proceeding pursuant to CPLR article 78, to, inter alia, compel respondent to release certain documents requested under the Freedom of Information Law.

In what appears to be a case of first impression, we are today called upon to reconcile the provisions for disclosure of public records authorized by the Freedom of Information Law (Public Officers Law art. 6) (hereinafter FOIL) with certain provisions of Executive Law § 94 which, inter alia, delineates respondent's functions, powers and duties. The issue in this case distills to whether an annual financial disclosure statement filed with respondent may be photocopied, photographed or otherwise reproduced upon demand made under FOIL or whether Executive Law § 94(17)(a) permits only the inspection of an annual financial disclosure statement as redacted without concomitantly permitting such records to be reproduced.

The facts are relatively uncomplicated. On October 19, 1990, respondent denied a telephone request made by petitioner for a copy of the most recent annual financial disclosure statement filed by John Stanwix, the chair of the Monroe County Republican Committee, pursuant to the requirements of Public Officers Law § 73-a(2)(a). The denial was based upon a regulation promulgated by respondent which states that:

[T]he statements are not available for photocopying, photographing or mechanical duplication in any manner. Handwritten notes may be taken (19 NYCRR 937.5[c].

Petitioner thereupon commenced this CPLR article 78 proceeding seeking a judgment (1) declaring that 19 NYCRR 937.5(c) is illegal, (2) granting a permanent injunction preventing enforcement of the regulation, (3) directing that respondent be required to provide petitioner with a copy of the requested record at a cost not to exceed 25 cents per page, and (4) awarding petitioner counsel fees pursuant to Public Officers Law § 89(4)(c) or CPLR article 86, and permitting her to particularize her fee application. Petitioner also moved by order to show cause for the relief demanded in the petition and for a preliminary injunction prohibiting enforcement of the regulation pending final judgment.

Supreme Court ordered respondent to supply petitioner with a copy of the requested financial disclosure statement after deletion of those portions exempted from disclosure by statute upon payment of a reasonable fee and denied the petition in all other respects. Respondent has appealed from so much of the judgment as required that a copy of the statement be furnished. Petitioner has cross-appealed from so much of the judgment as denied the remainder of the relief sought in her petition.

Executive Law § 94(17)(a) states that:

Notwithstanding the provisions of article six of the public officers law, the only records of [respondent] which shall be available for public inspection are:

(1) the information set forth in an annual statement of financial disclosure filed pursuant to section seventy-three-a of the public officers law except the categories of value or amount, which shall remain confidential * * *.

Contrary to the determination by Supreme Court, Executive Law § 94(17)(a), enacted subsequent to the enactment of FOIL, clearly purports to remove from the provisions of FOIL respondent's records. Further, Public Officers Law § 87(2) contemplates such circumstances by specifically providing that each agency may:

* * * deny access to records or portions thereof that:

(a) are specifically exempted from disclosure by state or federal statute;

(b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article; * * *.

In effect, the standards governing disclosure under the Executive Law are substituted for those set forth in FOIL.

Under FOIL, the Legislature has declared the need for a free society to have access to governmental records and established a liberal and open policy of inspection (Public Officers Law § 84; see, Public Officers Law § 100 [Open Meetings Law]. ¹ By the same token, the Legislature has expressed its concerns about general access to private data of individuals (see, Public Officers Law art. 6-A [Personal Privacy Protection Law]; Public Officers Law § 89[2]; see also, Civil Rights Law art. 5).

Both the obligation to disclose and the right to privacy focus upon the financial, business and professional activities of public officials, State employees and officers of political parties to the end that potential conflicts of interest or corruption may be exposed. In most situations the details of these personal affairs are quite unrelated to government operations. The State, in resolving these concerns, established respondent and mandated forms to be filed which contain extensive disclosure of personal finances (see, Public Officers Law § 73). In so doing, however, a standard for public inspection of respondent's records quite distinct from the disclosure provisions of FOIL was established, and the competing interests of public disclosure and personal privacy were appropriately addressed and balanced (see, Watkins v. New York State Ethics Commn., 147 Misc.2d 350, 554 N.Y.S.2d 955). It is within this context that we analyze respondent's promulgation of 19 NYCRR 937.5(c) which interprets the public inspection requirement under Executive Law § 94(17)(a).

We initially note that the word "copying" does not appear in Executive Law § 94(17)(a) unlike in FOIL, where that word is associated with the word "inspection" throughout (see, Public Officers Law § 87[2], § 88[...