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July 18, 1995

 

 

Mr. John Burch
179 Cronin Road
Queensbury, NY 12804

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

Dear Mr. Burch:

I have received your letter of July 8. On behalf of the Queensbury Ethics Advisory Council, you wrote that the Town of Queensbury is currently reviewing its ethics law and that an issue has arisen concerning the status of and access to financial disclosure statements completed by Town officers and employees.

According to Your letter:

"Presently, the Ethics Advisory Council opens and reviews the disclosure statements once a year. This review discovers a number of incomplete disclosures which are returned to the officials and properly completed. It also may discover a violation of the Ethics Law. The disclosure forms are kept in a secure place that is maintained by the Ethics Advisory Council. They have never been the subject of a Freedom of Information request.

"Town officials are now under the impression that if the disclosure forms are opened for the annual review, they will then become subject to FOI requests and will have to be provided to the requestor. These officials also believe that if the disclosure statements are not opened and reviewed, they will not become available under the FOI Law.

"The disclosure statements contain a great deal of personal financial information and public disclosure for someone who has not been accused of wrongdoing seems unfair. The Town Board has requested input on the law change from our committee, we feel we cannot make a proper recommendation without first knowing wither [sic] opened disclosure statements would be subject to the Freedom of Information Law." You sought my opinion "as to whether opening these statements for review purposes only, would make them subject to disclosure under FOI." In this regard, I offer the following comments.

First, it is emphasized that the Freedom of Information Law is applicable to all agency records. In my view, once a financial disclosure statement is in the possession of the Town or the Council acting on behalf of the Town, it falls within the coverage of the Freedom of Information Law, irrespective of whether it is opened or reviewed. This is not to suggest that the statements must be disclosed in their entirety, but rather that they are subject to rights of access conferred by the Law.

Specifically, §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 on the foregoing, the financial disclosure statements, once they are maintained by or for the Town, would in my opinion constitute "records" for purposes of the Freedom of Information Law.

Second, as a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law. From my perspective, financial disclosure statements must be disclosed, except to the extent that disclosure would result in "an unwarranted invasion of personal privacy" [see Freedom of Information Law, §87(2)(b)]. Therefore, while some aspects of a financial disclosure statement must be made available to the public, others could likely be withheld in consideration of personal privacy.

Also relevant to an analysis of the matter in my opinion is the Ethics in Government Act. The provisions of the Act pertaining to municipalities, such as towns, 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 may be pertinent to the issue. Further, while the advisory jurisdiction of this office involves the Freedom of Information Law, in this instance, it is necessary to review certain provisions of the General Municipal Law.

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

"Notwithstanding the provisions of article six of the public officers law [the Freedom of Information 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" and stated that, with certain exceptions, financial disclosure statements were public. In my view, the direction given in that provision may be used as a guide, even though the Commission no longer exists.

One of the exceptions involves "categories of value or amount." Consequently, when a disclosure statement includes not only the nature of an asset (i.e., shares of stock in a certain corporation), but also its value (i.e., the number and value of the shares), the information indicating the value of the asset could be withheld or deleted prior disclosure of other aspects of the statement. The other exception involves a request by the submitter of a disclosure statement that certain items on the statement that would otherwise be available be withheld from the public when those items "have no material bearing on the discharge of the reporting person's official duties." If an ethics board or council agrees with such a contention, those items would be deleted prior to any public release of the statement.

In both of the instances under the Ethics in Government Act in which items may be deleted or withheld, the basis for the deletions involves, in essence, a determination that disclosure would constitute an unwarranted invasion of personal privacy. In my view, that standard should serve as the basis for determining the extent to which a financial disclosure statement may appropriately be withheld.

I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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