Ms. Kathleen J. Cochran
462 Adelaide Place
N. Tonawanda, NY 14120-1604
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 Ms. Cochran:
I have received your letter of November 22. Please accept my apologies for the delay in response. You have questioned the propriety of a denial of your request for a financial disclosure statement filed with Niagara County by a former County legislator.
The County's denial of access is based on a section of its Code of Ethics, which states in part that disclosure statements are confidential. From my perspective, to the extent that the Code of Ethics is inconsistent with the Freedom of Information Law, it could be found to be invalid. While I do not intend to analyze the issue in a manner that is overly complex, it is important to review the history of certain statutes and their relationship to one another in order to offer appropriate guidance. In this regard, I offer the following comments.
First, it appears that the provision in the Code of Ethics at issue was enacted in conjunction with the Ethics in Government Act ("the Act"). 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 the matter, it is necessary to interpret certain provisions of the General Municipal Law.
The central 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 provided 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 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.
In my opinion, the governing statute is the Freedom of Information Law. In brief, 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.
Relevant to the matter is §87(2)(a), which 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, the State's highest court, that an agency's regulations or the provisions of a local law, 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)].
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.
Since you referred to the former legislator and "the amount of money he has", I believe that specific information concerning the value of his assets could be withheld. For example, while the law would require a disclosure of the fact that a county officer owns shares in a particular corporation, the number of shares or their value could be withheld on the ground that disclosure would result in an unwarranted invasion of personal privacy. Similarly, the amount of money held in a bank would represent information which, in my view, could clearly be withheld. In essence, typically, financial disclosure statements must be disclosed insofar as they indicate the sources of one's assets, but they may be withheld from the public insofar as they indicate the value of the assets. I hope that I have been of assistance.
Robert J. Freeman
cc: Thomas M. Jaccarino