John v. New York State Ethics Com'n

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

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.

Page 883

[178 A.D.2d 52] 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.

[178 A.D.2d 51] 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.

[178 A.D.2d 52] 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 [178 A.D.2d 53] 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...