N.B. After December 31, 2016 only registered readers of New York Public Personnel Law will be able to access this LawBlog. Click on http://nypplcaes.blogspot.com/ for information about becoming a registered reader.

TO RESEARCH NYPPL POSTINGS type in your key word or phrase in the box at the upper left and tap enter.

N.B. “Cookies” provide a method for an Internet site to recognize a visitor and keep track of "visitor preferences." NYPPL does not use “cookies.” Google, its advertisers linked to this site by Google and others, however, may be using "cookies." A visitor's continuing to access NYPPL will be deemed to constitute the visitor's knowledge of, and the visitor's consent to, the use of "cookies" on NYPPL's LawBlog by Google, its advertisers and others.

Tuesday, February 26, 2013

A FOIL request seeking the names of a public retirement system’s retirees may be denied by the custodian of the records as exempt from disclosure

A FOIL request seeking the names of a public retirement system’s retirees may be denied by the custodian of the records as exempt from disclosure
Empire Ctr. for N.Y. State Policy v New York State Teachers' Retirement Sys., 2013 NY Slip Op 01117, Appellate Division, Third Department

The Empire Center for New York State Policy, [Policy] a nonprofit corporation, operates a website "aimed at educating and informing the general public about government spending."

In 2012, Policy filed a Freedom of Information Law* [Public Officers Law Article 6 (FOIL)] request seeking an updated database containing information pertaining to the Teachers’ Retirement System's [Retirement] retired members. Such request sought the same information that System had provided to Policy in previous years pursuant to FOIL requests, including the name of each retiree.

Retirement furnished most of the requested information, but refused to disclose the names of the retirees to whom the information corresponded, contending that "such information is exempt from disclosure under Public Officers Law §89(7)."

Public Officers Law §89(7), in pertinent part, provides: “Nothing in this article shall require the disclosure of the home address of … a retiree of a public employees' retirement system; nor shall anything in this article require the disclosure of the name or home address of a beneficiary of a public employees' retirement system … provided however, that nothing in this subdivision shall limit or abridge the right of an employee organization, certified or recognized for any collective negotiating unit of an employer pursuant to article fourteen of the civil service law, to obtain the name or home address of any … retiree of such employer, if such name or home address is otherwise available under this article.”

Citing the foregoing provisions of law, Policy contended that the plain language of Public Officers Law §89(7) exempts from disclosure only the home address, not the name, of a retiree. Noting that the statute makes a clear distinction between retirees and beneficiaries, Policy further argued that to read the term "beneficiary" to include a "retiree" would both deprive the word "retiree" of its own meaning and render the first clause of the provision superfluous.

Although conceding that “Well-settled principles of statutory construction lend support to the interpretation advanced by Policy,” the Appellate Division said that it was bound by the Court of Appeals' decision in Matter of New York Veteran Police Association. v New York City Police Dept. Art. I Pension Fund (61 NY2d 659 [1983]).

In Veterans Police Association the Court of Appeals interpreted Public Officers Law §89(7) as exempting from disclosure both the names and home addresses of retirees of a public employees' retirement system.
Policy attempts to distinguish its FOIL request from that relevant in Veterans by contending that the Veteran’s FOIL request was for both the names and the addresses of the retirees, whereas its request here was for the names only.

The Appellate Division ruled that the Retirement System properly denied Policy's FOIL request for the names of its retired members, noting that the First Department, relying on Veterans, reached this same conclusion in addressing a similar FOIL request by Policy for the names of the retirees of the New York City Police Pension Fund (see Empire Ctr. for N.Y. State Policy v New York City Police Pension Fund, 88 AD3d 520, 521 [2011], lv dismissed, 18 NY3d 901 [2012]).

* The basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited by statute [see, for example, Education Law, §1127 - Confidentiality of records and §33.13, Mental Hygiene Law - Clinical records; confidentiality], are available to the public. The custodian of the records or documents requested may elect, but is not required, to withhold those items that are otherwise properly within the ambit of the several exceptions to disclosure permitted by FOIL.

The decision is posted on the Internet at:

Handbooks focusing on New York State and Municipal Public Personnel Law:

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.


Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Readers may share material posted in NYPPL with others provided attribution to NYPPL is given.

Copyright© 1987 - 2016 by the Public Employment Law Press.


N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.