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Friday, May 16, 2014

Home addresses of State employees and retirees may be excluded from disclosure in response to a FOIL request


Home addresses of State employees and retirees may be excluded from disclosure in response to a FOIL request
Empire Ctr. for N.Y. State Policy v New York State Teachers' Retirement Sys., 2014 NY Slip Op 03193, Court of Appeals

In Empire Center for New York State Policy the Court of Appeals held that the Freedom of Information Law, commonly referred to as “FOIL,” permits the names, but not the addresses, of retirees who receive benefits from public employees' retirement systems to be disclosed in response to a FOIL request.

Empire Center submitted a FOIL with the New York State Teachers' Retirement System and the Teachers' Retirement System of the City of New York seeking the names of the retired members of the systems. When the retirement systems refused to provide the names, Empire Center filed CPLR Article 78 petitions to compel disclosure. Supreme Court dismissed both petitions, and the Appellate Division affirmed in each case.*

The Court of Appeals reversed the lower courts’ rulings, explaining that the controlling FOIL provision, Public Officers Law  §89(7), provides, in pertinent part, that:

"Nothing in this article [i.e., FOIL] shall require the disclosure of the home address of an officer or employee, former officer or employee, or 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 ….”**

Thus the home address of a retiree – but not his or her name – fall within the available enumerated exceptions to disclosure set out in FOIL. In contrast, the court noted the name and, or, the home address of  "a beneficiary of a public employees' retirement system" – a person entitled to benefits upon the death of the retiree – may be excluded from disclosure in response to a FOIL request.

The release of some public records is limited by a statute such as Education Law, §1127 - Confidentiality of records or §33.13, Mental Hygiene Law - Clinical records; confidentiality. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the record. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

Addressing the retirement systems’ argument that disclosure should be denied as an "unwarranted invasion of personal privacy" within the meaning of Public Officers Law §87 [2] [b]), the court concluded that  “the idea that anyone's privacy will be invaded is speculative” but in the event a FOIL request that seems to have such a purpose is made, that would be the time to consider the effect of the privacy exemption, including the provision addressing the "sale or release of lists of names and addresses if such lists would be used for solicitation or fund-raising purposes."

* See Matter of Empire Ctr. for N.Y. State Policy v New York State Teachers' Retirement Sys., 103 AD3d 1009 [3d Dept 2013]; Matter of Empire Ctr. for N.Y. State Policy v Teachers' Retirement Sys. of the City of New York, 103 AD3d 593 [1st Dept 2013]

** The Freedom of Information Law does not bar an employee organization, certified or recognized for any collective negotiating unit of an employer pursuant to Article 14 of the Civil Service Law, “to obtain the name or home address of any officer, employee or retiree of such employer, if such name or home address is otherwise available under this article."

The decision is posted on the Internet at:

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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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