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May 28, 1993

 

 

Mr. Joe DeStefano
15 Highland View Place
Middletown, NY 10940

The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the facts presented in your correspondence.

Dear Mr. DeStefano:

I have received your letter of May 10 and the correspondence
attached to it.

You have requested an advisory opinion concerning "the
conditions the Orange County Board of Ethics has placed on [the]
acquisition of government documents under the Freedom of
Information Law." Specifically, having requested financial
disclosure forms submitted by Orange County legislators, you were
informed that the County's Ethics Code requires that an applicant
for such records "state a legitimate purpose for the examination."
You were also informed that "[d]ecisional law in the State has made
it clear that no photocopies of the records need be provided nor
may any be made during the examination."

You asked whether I "consider these two conditions legal." In
this regard, I offer the following comments.

First, as a general matter, when records are accessible under
the Freedom of Information Law, it has been held that they should
be made equally available to any person, regardless of one's
status, interest or the intended use of the records [see Burke v.
Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165
(1976)]. Moreover, the Court of Appeals has held that:

"FOIL does not require that the party
requesting records make any showing of need,
good faith or legitimate purpose; while its
purpose may be to shed light on government
decision-making, its ambit is not confined to
records actually used in the decision-making
process. (Matter of Westchester Rockland
Newspapers v. Kimball, 50 NY2d 575, 581.)
Full disclosure by public agencies is, under
FOIL, a public right and in the public
interest, irrespective of the status or need
of the person making the request" [Farbman v.
New York City Health and Hospitals
Corporation, 62 NY 2d 75, 80 (1984)].

Farbman pertained to a situation in which a person involved in
litigation against an agency requested records from that agency
under the Freedom of Information Law. In brief, it was found that
one's status as a litigant had no effect upon that person's rights
as a member of the public when using the Freedom of Information
Law, irrespective of the intended use of the records. Similarly,
unless there is a basis for withholding records in accordance with
the grounds for denial appearing in §87(2) of the Freedom of
Information Law, the purpose for which a request is made is in my
opinion irrelevant. Based upon the foregoing and for reasons to be
discussed later, I believe that a provision in a municipal code
that conditions disclosure upon a finding that the reasons for a
request is appropriate is inconsistent with law.

Second, the other "condition" relating to the ability to
inspect but no right to photocopy involves complex issues relating
to the Ethics in Government Act as well as the Freedom of
Information Law. The provisions of the Act pertaining to
municipalities, such as counties, are found in the General
Municipal Law. It is noted that those provisions include
references to the New York State Temporary Commission on Local
Government Ethics ("the Commission"). Although the Commission no
longer exists, various provisions concerning its former role are in
my view relevant to an analysis of the issue. Further, while the
advisory jurisdiction of this office involves the Freedom of
Information Law, in this instance, in order to provide advice
concerning your question, it is necessary to interpret certain
provisions of the General Municipal Law.

The initial and basic issue involves which law applies -- the
Freedom of Information Law, the General Municipal Law, or perhaps
a local enactment.

As you may be aware, the Freedom of Information Law pertains
to all agency records, irrespective of whether they are public,
deniable or exempted from disclosure by statute. Section 86(4) of
the Freedom of Information Law defines the term "record"
expansively to mean:

"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions. folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."

Based upon the foregoing, I believe that financial disclosure
statements and related documents constitute "records" that fall
within the scope of the Freedom of Information Law. Whether
records are available may be dependent upon their contents [i.e.,
the extent to which disclosure would constitute an unwarranted
invasion of personal privacy under §87(2)(b)] or the relationship
between the Freedom of Information Law and other statutes.

When a municipality elected to file financial disclosure
statements with the Commission when it existed, §813 of the General
Municipal Law in my view provided clear direction. Specifically,
paragraph (a) of subdivision (18) of that statute states that:

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

(1) the information set forth in an annual
statement of financial disclosure filed
pursuant to local law, ordinance or resolution
or filed pursuant to section eight hundred
eleven or eight hundred twelve of this article
except the categories of value or amount which
shall remain confidential and any other item
of information deleted pursuant to paragraph h
of subdivision nine of this section, as the
case may be;

(2) notices of delinquency sent under
subdivision eleven of this section;

(3) notices of reasonable cause sent under
paragraph b of subdivision twelve of this
section; and

(4) notices of civil assessments imposed
under this section."

As such, §813(18)(a) governed rights of access to records of "the
commission".

Notably, in a memorandum prepared by the Commission in April
of 1991 and transmitted to me, the Commission wrote that "The Act
does not specifically address the public availability of annual
financial disclosure statements filed with a municipality's own
local ethics board." That memorandum states, however, that "the
Act does authorize a Section 811 Municipality to promulgate rules
and regulations, which 'may provide for the public availability of
items of information to be contained on such form of statement of
financial disclosure'." Section 811(1)(c) authorizes the
governing body of a municipality to promulgate:

"rules and regulations pursuant to local law,
ordinance or resolution which rules or
regulations may provide for the public
availability of items of information to be
contained on such form of statement of
financial disclosure, the determination of
penalties for violation of such rules or
regulations, and such other powers as are
conferred upon the temporary state commission
on local government ethics pursuant to section
eight hundred thirteen of this article as such
local governing body determines are warranted
under the circumstances."

In addition, §811(1)(d) states in part that if a local board of
ethics is designated to carry out duties that would otherwise be
performed by the Commission:

"then such local law, ordinance or resolution
shall confer upon the board appropriate
authority to enforce such filing requirement,
including the authority to promulgate rules
and regulations of the same import as those
which the temporary state commission on local
government ethics enjoys under section eight
hundred thirteen of this article."

In turn, §813(9)(c) states in relevant part that the Commission
shall "[a]dopt, amend, and rescind rules and regulations to govern
procedures of the commission..." As such, it appears from my
perspective that the regulatory authority of the Commission was
and, therefore, a local board of ethics, is restricted to the
procedural implementation of the Ethics in Government Act. In my
view, issues concerning rights of access to records do not involve
matters of procedure, but rather matters of substantive law that
are governed by statute. Moreover, it has been held that
regulations cannot serve to exempt records from disclosure.
Section 87(2)(a) of the Freedom of Information Law permits an
agency to withhold records that are "specifically exempted from
disclosure by state or federal statute." It has been held by
several courts, including the Court of Appeals, that an agency's
regulations or the provisions of an administrative code or
ordinance, for example, do not constitute a "statute" [see e.g.,
Morris v.Martin, Chairman of the State Board of Equalization and
Assessment, 440 NYS 2d 365, 82 AD 2d 965, reversed 55 NY 2d 1026
(1982); Zuckerman v. NYS Board of Parole, 385 NYS 2d 811, 53 AD 2d
405 (1976); Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)].

For the foregoing reasons, I believe that rights of access to
the Commission's records had been governed by the Ethics in
Government Act [§813(18)(a)] but that regulations promulgated by a
municipality may implement procedures but cannot determine rights
of access to records. If my conclusions are accurate, that neither
§813 nor the regulations promulgated by the Commission nor a local
enactment would govern rights of access to records maintained by
the Board of Ethics, the Freedom of Information Law would govern.

This is not to suggest that public rights of access would be
significantly different whether the Freedom of Information Law or
a different provision of law is applied. For instance, under
§813(18)(a)(1), financial disclosure statements filed with the
Commission were available, except those portions indicating
categories of value or amount or when it is found that reported
items "have no material bearing on the discharge of the reporting
person's official duties." In my view, the same information that
is exempted from disclosure could be deleted from a financial
disclosure statement maintained by a municipality under the Freedom
of Information Law on the ground that disclosure would constitute
"an unwarranted invasion of personal privacy" [see §87(2)(b) and
89(2)(b)]. Therefore, while the statutes governing rights of
access may be different, I believe that the outcome in terms of
disclosure to the public would essentially be the same.

I point out that the provision involving access to Commission
records, §813(18)(a), refers to certain records "which shall be
available for public inspection." Similarly, the regulations
promulgated by the Commission concerning the records specify that
"[t]he annual statements are not available for photocopying,
photographing, or mechanical duplication in any manner [9 NYCRR
9978.6(c)]. As such, if the County's regulations were required to
be consistent with those of the Commission, the public could
inspect but not seek photocopies of financial disclosure
statements. It appears that the response to your request referred
to a recent decision involving the State Ethics Commission. That
entity operates under the Executive Law, and the language of the
provision concerning access to its records is the same as that in
the General Municipal Law concerning the Commission. In upholding
the State Ethics Commission's denial of a request for photocopies
of disclosure statements, the Court found that "the word 'copying'
does not appear in Executive Law §94(17) unlike in FOIL, where that
word is associated with the word 'inspection' throughout...We
further note that the obligation to permit public inspection does
not, within its definition, include a commensurate obligation to
permit copying" [John v. New York State Ethics Commission, 581 NYS
2d 882, 884; 178 AD 2d 56 (1992)].

Consistent with the preceding analysis, while statutes within
the Executive Law and the General Municipal Law pertaining to
records of the State Ethics Commission and the Temporary State
Commission on Local Government Ethics govern access to records of
those entities, it is reiterated that the Freedom of Information
Law in my opinion is the governing statute with respect to records
of local boards of ethics.

If that is so, an applicant for an available record would have
the right to inspect that record and obtain a photocopy upon
payment of the appropriate fee, for the Freedom of Information Law
states in §87(2) that accessible records must be made available for
inspection and copying. Moreover, §89(3) requires that an agency
prepare copies of records upon payment of the requisite fee.

In sum, based upon the preceding commentary, I believe a
municipality must, on request and on payment of the appropriate
fee, provide photocopies of financial disclosure statements.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Michael H. Donnelly