Young v. Town of Huntington

• Decision Date: 21 October 1976
• Citation: 88 Misc.2d 632,388 N.Y.S.2d 978
• Parties: Gordon W. YOUNG, Petitioner, v. TOWN OF HUNTINGTON et al., Respondents.
• Court: New York Supreme Court

Page 978

388 N.Y.S.2d 978

88 Misc.2d 632

Gordon W. YOUNG, Petitioner, v. TOWN OF HUNTINGTON et al., Respondents.

Supreme Court, Special Term, Suffolk County, Park I.

Oct. 21, 1976.

Gordon W. Young, Huntington, pro se.

Ronald Glickman, Town Atty. Huntington, for respondents.

MEMORANDUM

LEON D. LAZER, Justice.

The state's fundamental public disclosure statute, the Freedom of Information Law (Public Officers Law, Art. 6, L.1974, c. 578), contains a provision which exempts from inspection information contained in law enforcement investigatory files. When the Building Department of the Town of Huntington relied upon the exemption to deny the petitioner access to its records and was sustained by the Huntington Records Access Appeals Board, he instituted this Article 78 proceeding to review the denial. The breadth of the exemption has evolved as the principal issue in the case.

The exemptive provision is section 88, subd. 7, par. d ('88--7d') which provides that the right of access to public records under the statute shall not apply to information that is:

'd. part of investigatory files compiled for law enforcement purposes.'

Although it is apparent that this language encompasses the relevant files of police and other criminal law enforcement agencies, the critical question is whether it embraces the records of other bodies as well. Indeed, under the purported aegis of 88--7d, numerous departments and authorities of the state have hastened to adopt regulations shutting off public access to their investigative activities (see, e.g., 5 NYCRR 1.4(2)(d) (Dept. of Commerce); 14 NYCRR 8.5(d) (Dept. of Mental Hygiene); 10 NYCRR 50.2(d) (Dept. of Health); 9 NYCRR 589.8 (Commission on Cable Television); 21 NYCRR 501.7 (Atomic and Space Dev. Authority); 21 NYCRR 1076.5(c) (Triborough borough Bridge and Tunnel Authority); 21 NYCRR 1053.5(c) (New York City Transit Authority); 21 NYCRR 107.3(4) (New York State Thruway Authority); 21 NYCRR 886.20(f) (Delaware River Basin Commission)). If the obligation of such public agencies to enforce the laws under their jurisdiction shields their investigatory records from public scrutiny, then the Freedom of Information Law (the 'statute') has curtailed the public right to disclosure to a degree heretofore unsuspected (see Siegel, 1975 Practice Commentary, McKinney's Cons.Laws, Book 7B, CPLR 3101, C3101.25).

The records petitioner seeks are those which the Building Department compiled during its investigation of his complaint that construction work at certain town facilities was performed improperly and in violation of the Town Code. According to the Building Department Director, the investigation is being conducted pursuant to his law enforcement responsibilities as town building inspector (see Town Law § 138). Because violations of building codes and zoning ordinances enforceable by the building inspector are offenses and not crimes (see, e.g., Executive Law §§ 385, 396; Town Law § 268), the merit of the Director's contention that his files are immune from public inspection depends upon the scope of 88--7d.

Interpretation of the section has been sparse. In Zuckerman v. New York State Bd. of Parole, 53 A.D.2d 405, 385 N.Y.S.2d 811 (3rd Dept.), the parole board argued, inter alia, that 88--7d protected its minutes from inspection. Declaring that it was 'possible' that the minutes contained exempt information but that the exemption required a narrow construction, the court remanded the matter to nisi prius for an in camera inspection. Although parole board proceedings are administrative in nature (see People ex rel. Calloway v. Skinner, 33 N.Y.2d 23, 347 N.Y.S.2d 178, 300 N.E.2d 716; People ex rel. Maggio v. Casscles, 28 N.Y.2d 415, 322 N.Y.S.2d 668, 271 N.E.2d 517), Zuckerman is not dispositive of the breadth issue. Under Correction Law § 211, the police and the district attorney's office may be required to furnish the parole board with 'all existing available records' concerning each prisoner as he is received at a state corrective institution. Obviously, such records may include data from investigation files of criminal law enforcement authorities.

Apart from a brief mention of the exemption in the dissent in Sigety v. Horan, 50 A.D.2d 779, 376 N.Y.S.2d 552, and avoidance of the breadth issue in Martinez v. Libous, 85 Misc.2d 186, 378 N.Y.S.2d 917 because the records were available for inspection under another statute, the other reported 88--7d cases concern the palpably exempt files of district attorneys (see, e.g., Dillon v. Cahn, 79 Misc.2d 300, 359 N.Y.S.2d 981) and the police (see, e.g., V.F.V. Construction Company, Inc. v. Kirwan, 51 A.D.2d 753, 379 N.Y.S.2d 166; Farrell v. Village Bd. of Trustees, etc., 83 Misc.2d 125, 372 N.Y.S.2d 905). Thus, the dimensions of the exemption still remain for determination.

It is a basic tenet of statutory construction that the intention of the legislature must be sought in the words or language of the statute under construction (Dept. of Welfare of City of N.Y. v. Siebel, 6 N.Y.2d 536, 190 N.Y.S.2d 683, 161 N.E.2d 1), and where the legislature has used general terms and has not either expressly or by implication limited their operation, the courts will not impose a limitation (In re Di Brizzi, 303 N.Y. 206, 101 N.E.2d 464). However, a narrower construction may be given general terms where necessary to carry out the intent of the legislature if some reason for the limitation is found in the context or surrounding circumstances (see People v. Sharp, 107 N.Y. 427, 14 N.E. 319).

In this state, the term 'law enforcement' generally has been employed in the context of criminal law enforcement (see, e.g., CPL §§ 60.45, subd. 2(b), 240.10, subd. 3, 700.05, subd. 6, 710.20, subd. 3; Penal Law § 240.60; Agriculture & Markets Law § 109; Family Court Act § 753--a, subd. 1; Executive Law § 70--a; Correction Law § 621; Mental Hygiene Law § 7.17(b); People v. W., 24 N.Y.2d 732, 302 N.Y.S.2d 260, 249 N.E.2d 882; Albert v. Zahner's Sales Company, Inc., 81 Misc.2d 103, 364 N.Y.S.2d 410, aff'd, 51 A.D.2d 541, 378 N.Y.S.2d 414; In re Special Report of Grand Jury of Erie County Court, 192 Misc. 857, 77 N.Y.S.2d 438; but see Social Services Law § 352--a, subd. 1(d)). Nevertheless, the broad interpretation the federal judiciary gave to an almost identical exemption in the original federal Information Act creates a real doubt as to the meaning of the New York law. Federal decisions construing a federal law are highly persuasive to state courts considering a similar state statute, although they are not binding (Claim of Lazarus, 268 App.Div. 547, 52 N.Y.S.2d 682, aff'd, 294 N.Y. 613, 64 N.E.2d 169; In re Lewis' Will, 259 App.Div. 4, 18 N.Y.S.2d 133, aff'd, 284 N.Y. 671, 30 N.E.2d 720; People v. Graves, 254 App.Div. 438, 5 N.Y.S.2d 553, aff'd,279 N.Y. 793, 19 N.E.2d 89; In re Howe's Estate, 207 Misc. 972, 132 N.Y.S.2d 855, aff'd, 286 App.Div. 892, 142 N.Y.S.2d 713). Where the language of both laws is identical, the history of the federal law and the intent of Congress have a bearing on the intent of the legislature on the presumption that the state legislators had the same objective in mind (In re Walk's Estate, 192 Misc. 237, 79 N.Y.S.2d 645) and employed the statutory terms in the same sense (see In re Weiden's Estate, 263 N.Y. 107, 188 N.E. 270; Depuy v. McColgan, 112 Cal.App.2d 237, 246 P.2d 155; 82 C.J.S. Statutes § 371).

Of course, there are additional matters which may be considered in the search for legislative intent including legislative history (Williams v. Williams, 23 N.Y.2d 592, 298 N.Y.S.2d 473, 246 N.E.2d 333), the circumstances surrounding the statute's passage (Capone v. Weaver, 6 N.Y.2d 307 189 N.Y.S.2d 833, 160 N.E.2d 602), the general spirit and purpose underlying the enactment (Grannan v. Westchester Racing Asso., 153 N.Y. 449, 47 N.E. 896), the recitals in the statute's preamble (Westchester County Soc. v. Mengel, 266 App.Div. 151, 41 N.Y.S.2d 605, aff'd, 292 N.Y. 121, 54 N.E.2d 329), and the statements of the statute's draftsmen (Fisher v. New York State Employees' Retirement Sys., 279 App.Div. 315, 110 N.Y.S.2d 16).

When the Freedom of Information Law was enacted in 1974, the existing federal Freedom of Information Act contained an exemption for 'investigatory files compiled for law enforcement purposes . . .' (5 U.S.C.A. § 552(b)(7)). Because of judicial inconsistency as to whether disclosure was required where no enforcement action was contemplated (compare Bristol-Myers Company v. F.T.C., 138 U.S.App.D.C. 22, 424 F.2d 935, cert. den., 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52 (1970) with Frankel v. Securities and Exchange Commission, 460 F.2d 813 (2d Cir.), cert. den., 409 U.S. 889, 93 S.Ct. 125, 34 L.Ed.2d 146 (1972)), the original language subsequently was amended (see Pub.L. 93--502, §§ 1--3, 88 Stat. 1561--1564 (1974)) and the exemption now clearly includes both types of investigatory files. Even prior to the amendment, however, the exemption was held to apply to files prepared for both civil and criminal law enforcement (see, e.g., Soucie v. David, 145 U.S.App.D.C. 144, 448 F.2d 1067, 1078 n. 45 (1971); Clement Brothers Company v. N.L.R.B., 282 F.Supp. 540 (N.D.Ga.1968); Barceloneta Shoe Corp. v. Compton, 271 F.Supp. 591 (D.P.R.1967)).

The legislative history of the federal statute demonstrates that uncertainty existed with respect to the meaning of the exemptive language (see Comment, 1974 Wash.U.L.Q. 463; Note, 62 Geo.L.J. 177 (1973); Davis, The Information Act: A Preliminary Analysis, 34 U.Chi.L.Rev. 761 (1967)). The Senate Committee report stated that the exemption pertained to 'files prepared by Government agencies to prosecute law violators' (see S.Rep. No. 813, 89th Cong., 1st Sess. (1965)), language which could be interpreted to refer to the criminal law (Davis, supra, at 799). But the House Committee reported that the exemption covered investigatory files related to the enforcement of 'all kinds of laws, labor...