White Plains Ethics Law Found To Violate NYS FOIL

By Jim Maisano

An important legal decision relating to the New York State Freedom of Information Law (“NYFOIL”) was released this past week in Westchester, which should place local governments on notice that they cannot pass local laws restricting the availability of documents and information to the public beyond the clear language of NYFOIL, even if the local government does it in the interest of protecting confidentiality.

This decision in the New York State Supreme Court, Westchester County by the Hon. James W. Hubert was filed and entered on March 20, 2012 in the case captioned The Journal News v. City of White Plains.  Here is the opinion:

Judge Hubert Decision

This litigation deals with an attempt by the newspaper The Journal News to acquire documents from the City of White Plains relating to the ethics investigation of former Mayor Adam Bradley.

NYFOIL can be found in the Public Officers Law, Sections 84-90, and Judge Hubert states that NYFOIL “makes all government records ‘presumptively available to the public for inspection’ unless they fall under a limited number of exceptions.  Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 566, 505 N.Y.S.2d 576 (1986).  The general philosophy underpinning the statute is full agency disclosure in order to ‘achieve maximum public access to government documents.’  Encore Coll. Bookstores v. Auxiliary Serv. Corp. of State Univ. of NY at Farmingdale, 87 N.Y.2d 410, 416, 639 N.Y.S.2d 990 (1995).”

The City of White Plains refused to release some requested documents to The Journal News citing Section 2-5-111(a)(14) of its Ethic Code, which states, “the complaint, records and other proceedings related thereto prior to the filing of charges or dismissal of the complaint for lack of jurisdiction are deemed confidential.”  Judge Hubert refused to apply this language from the Ethics Code and agreed with the The Journal News in holding, “the Court agrees that FOIL’s statutory disclosure requirements pre-empt any conflicting confidentiality requirements contained in a local ordinance such as the one at issue here.”

Therefore, this section in the White Plains Ethics Code was found to violate NYSFOIL, which demonstrates how strictly courts rely on the express language in this state law, especially since the pre-empted clause does make some sense in seeking to make documents in an ethics investigation confidential prior to charges being filed.  We can understand the logic here – why should the documents from the investigation be publicly released if the Ethics Board decides not to move forward with charges after completing its investigation.  Nevertheless, we see a bright line here in state law that no government can pass a statute at odds with NYFOIL – logical or not.

It should be noted that NYFOIL does provide specific exemptions for when a government may withhold documents to the public in Public Officers Law Section 87(2), and included in these exemptions are protections for confidentiality.  Once again, White Plains was not allowed under NYFOIL to provide greater protections for confidentiality than those set forth in Section 87(2).

If you are an attorney working for local governments or local elected official, please be careful when passing any legislation that may be deemed to place limits on NYFOIL, as you will probably face the same fate as White Plains.   Here is a link to NYFOIL, so that you can review it once again:  http://www.dos.state.ny.us/coog/foil2.html

We are very lucky to have such a strong Freedom of Information Law in New York State, which is a terrific guarantee that citizens can properly follow the decision-making process by governmental entities, and thankfully, some citizens will utilize this Freedom of Information Law to be “watchdogs” on behalf of their fellow citizens to help make our democracy work better and to make our elected officials more responsive and accountable.

James Maisano, Esq.
(914) 636-1621

One response

  1. John M Hinchey | Reply

    Thank you Jim ,
    this is good to know….

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