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FOIL-AO-17955

From:   Jobin-Davis, Camille (DOS)
Sent:    Friday, January 08, 2010 4:29 PM
To:      
Subject:           RE: NYC Police Pension Fund

 

In brief, please note that it is my opinion that the Police Pension Fund’s reliance on the term “beneficiary” in section 89(7) of the Freedom of Information Law in order to deny access to the names of persons receiving benefits from the Fund is misplaced.  As set forth in its entirety, subsection (7) is as follows:

“Nothing in this article shall require the disclosure of the home address of an officer or employee, former officer or employee, or of a retiree of a public employees' retirement system; nor shall anything in this article require the disclosure of the name or home address of a beneficiary of a public employees' retirement system or of an applicant for appointment to public employment; provided however, that nothing in this subdivision shall limit or abridge the right of an employee organization, certified or recognized for any collective negotiating unit of an employer pursuant to article fourteen of the civil service law, to obtain the name or home address of any officer, employee or retiree of such employer, if such name or home address is otherwise available under this article.”

In my opinion, a logical interpretation of the descriptions of categories of persons whose home addresses are protected by subsection (7) is as follows: “an officer or employee” is a current public employee, a “former officer or employee” is someone who has left public service, and “a retiree of a public employees’ retirement system” is a retired public employee.  Those whose home addresses and names are protected by subsection (7) include “a beneficiary of a public employees’ retirement system”, or a person named as a beneficiary of a retired public employee, and “an applicant for appointment to public employment”, or a person who applied for a position of public employment. 

In consideration of that interpretation, in my opinion it would be illogical for an agency to construe subsection (7) as protecting a retiree’s home address in the first instance, and the same retiree’s name and home address in the second instance.   Based on the progression of the language of subsection (7) it is clear that a beneficiary is a person designated by a public employee to receive pension benefits in the event of the employee’s death.  In my opinion, it is illogical to apply a dictionary definition of the word “beneficiary” to the language of the subsection, and the Fund has no basis to deny access to the names of those persons who are retired from public employment and receiving pension benefits.

Please note that there are advisory opinions on our website that set forth the statutory requirement that the names and salaries of all public employees be made public, as well as references to case law requiring disclosure of information regarding benefits conferred on public employees.

Finally, I believe that the agency’s argument that disclosure of the name of a retired police officer
could endanger that person’s life or safety, without more, is without merit.

If you would like a more expansive advisory opinion, please advise.

Camille S. Jobin-Davis, Esq.
Assistant Director
NYS Committee on Open Government
Department of State
99 Washington Ave, Suite 650
Albany NY 12231
Tel: 518-474-2518
Fax: 518-474-1927
http://www.dos.ny.gov/coog/index.html