White Plains Ethics Law Found To Violate NYS FOIL

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 Newsciting 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.

Jim@JamesMaisanoEsq.com

www.JamesMaisanoEsq.com

(914) 636-1621

Thoughts on a Difficult Week – Attempt to Say Something Useful

Over the past three days, I had several contacts with death: a high school friend, a colleague’s wife, a client’s mother and a Facebook friend’s dad. That is a lot of sadness in only three days. Two died before they reached 50 – way, way too early. Right now, it is hard to focus on anything else beyond these deaths.

Today, I will be attending the funeral of Dr. Jacqueline Proner, the wife of Legislator David Gelfarb. She was 49 and they have three kids. What is more tragic and sad than her passing? I cannot even imagine what David is going through. I hate that it happened. Several people have said to me over the past two days: “It reminds you what’s really important in life.” And that is certainly true.

So what does one take from a week like this? Obviously, it reminds us that life is fleeting and can disappear quickly. We have no idea how long we will be on this earth, so we better make the most of it right now. Are we spending enough time with our loved ones? For many, the answer is probably “no.” We have created a society where we are working longer hours in this roller-coaster economy, and in many families both parents must work full time to pay the bills. Are we dedicating enough of our time to our kids?

And if you really want to get depressed, turn on the television. You see so much sex and violence, mean and crude political dialogue and idiotic reality shows – nothing we can be very proud of. It really makes you wonder where we are going as a society. How do we change this?

I don’t dare claim to have the answers. I know I need to spend more time with my family immediately, because I could get hit by a bus next week. Yesterday, I was catching up on my law work and my wife mentioned it was a nice day and I should go have a baseball catch with my son. I said I was too busy – that was the definitely the wrong answer.

As an elected official, I am frankly shocked by the polarization I see every day. We so-called leaders are supposed to be improving our society, and we are all fighting. Many of our constituents are doing the same. Too many people have moved to the extremes and are only speaking to people they agree with – rather than engage the other side in a respectful and productive way to find common ground. I do try to make a difference in my position, but it is a tough climate. So now I have another thing to work on, which is doing a better job of bringing people together in our county government. All 17 county legislators and the county executive must work harder at communicating and compromising.

So, maybe this week can be a wake-up call to some degree – I know I need to do better and so do you. I am sharing this post on my county legislator blog because I feel like I had to say something useful to my friends and constituents about what I am feeling today.

I cannot stop thinking about the passing of 49 year old Dr. Jacqueline Proner. I chatted with her several times over the past year, and she was engaging, thoughtful and friendly. She had a terrific personality and worked so hard to advance David’s career and her own, and she was so proud to watch our legislative swearing-in ceremony in January. Why God took her, we may never know. Her death is so damn sad and impossible to explain.

But we are all still here. We just don’t know when our number will be up. I suggest we take a lesson from all this death and focus harder on the important things – spending more quality time with family and friends, being nicer and more respectful to each another, publicly opposing hate, and contributing more to make this world a better place.

Jacqueline will not have a chance to do this, but the rest of us do.

Jim Maisano

County Legislator

CtyLegJimMaisano@gmail.com

914-636-1621