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White Plains Ethics Law Found to Violate NYS FOIL

Local government officials should review this recent NYS FOIL decision issued right here on Westchester County.

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

www.JamesMaisanoEsq.wordpress.com

914-636-1621

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.

Michael N. Hull March 26, 2012 at 11:40 PM
I applaud you for writing this blog and for the advice you have rendered to the Town Attorneys in the importance of understanding and complying with the full intent of the New York State Freedom of Information Law (“NYFOIL”). I have followed this case with much interest and was delighted to see this particular ruling.  I am also tracking the application of the New York State Open Meetings Law in the Town of Clarkstown as highlighted in several presentations to Clarkstown's Town Board by New City resident, Tom Nimick. Tom has been involved in application of the Open Meetings Law process using as an example the appointment of Jay Savino to handle tax certiorari matters for the Town. http://newcity.patch.com/articles/search-for-tax-cert-firm-was-limited http://newcity.patch.com/articles/the-town-board-and-the-open-meetings-law http://nanuet.patch.com/articles/resident-addresses-town-board-on-open-meetings-law http://newcity.patch.com/articles/constituent-seeks-clarification-of-tax-cert-attorney-hiring-process Perhaps you have been following this issue in the Town of Clarkstown or in your own home base of New Rochelle?   I would be interested in having you share some of your observations. 
HEALtheHARBOR.com March 27, 2012 at 10:32 AM
Please view the City of Rye’s Ethic Board meeting as they attempt to cover-up when Mayor Doug French was recently caught violating Ethics Codes; Part 1 http://www.youtube.com/watch?v=h3spwYSwPOE&context=C43add83ADvjVQa1PpcFN_JWqosLH4u7U6rrHGDSSqAPuJ9O1GKgM= Part 2 http://www.youtube.com/watch?v=GfwCYnwvHOo&context=C44aa028ADvjVQa1PpcFN_JWqosLH4u4_jFkL2Gnbe9R4RxcCgnFo=
HEALtheHARBOR.com March 27, 2012 at 10:38 AM
Here is the way a Rye Patch reporter (Renea Henry) was treated moments after, when she asked for the outcome of the same Ethics Board meeting in Rye. http://www.youtube.com/watch?v=Oq2EObQY-dM&feature=context&context=C44aa028ADvjVQa1PpcFN_JWqosLH4u4_jFkL2Gnbe9R4RxcCgnFo=
tedc March 27, 2012 at 04:00 PM
Rye GOP Chairman Pisconere: Rye’s French Administration’s recent activities leaving "stain on the community.” Rye Ethics Board not empowered and does not have authority to do what you’re asking them to do. 8 Minute Video - Watch: http://bit.ly/H8SY5g

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