August 02, 2019

Releasing annual employee financial disclosure statements to the public

The petitioner [Plaintiff] in this CPLR Article 78 action challenged the Suffolk County Legislature action [Resolution] directing the Suffolk County Board of Ethics [Board] to provide the Plaintiff's financial disclosure statements to the Ways and Means Committee of the Suffolk County Legislature. Supreme Court denied Plaintiff's petition and dismissed the proceeding whereupon Plaintiff appealed the lower court's determination, contending that the County Legislature's Resolution was, inter alia, arbitrary and capricious, an abuse of discretion, and in excess of the County Legislature's authority.

Suffolk County, as authorized by General Municipal Law §811(1), had adopted a local law requiring certain county employees to file annual financial disclosure statements with the Board. The Board was required to review each financial disclosure statement filed with it and determine whether there had been compliance with the disclosure requirements.

The County Code provided that an employee, at the time a financial statement was filed, could request that the Board withhold information from public disclosure on the ground that such disclosure would constitute an unwarranted invasion of privacy or a risk to an individual's safety or security.* Further, when the Board produces a financial statement for public inspection, it was required to notify the employee of the production and of the name of the person to whom it was provided.  

A newspaper published in Suffolk County submitted a request to the Board for release of the Plaintiff's financial disclosure statements. The request was denied by the Board and the newspaper did not challenge the Board's determination. Subsequently the County Legislature, citing sections of the New York Freedom of Information Law and the United States Code, adopted the Resolution directing the Board to provide the Plaintiff's financial disclosure statements for the period "2000 to the present" to the Ways and Means Committee of the County Legislature based the Board's denial of the newspaper's request for the petitioner's financial disclosure statements.**

Ultimately Supreme Court stayed the public release of the Plaintiff's financial disclosure statements and required that the statements be submitted to the court, in camera. The County Legislature submitted "a memorandum of law, an amended memorandum of law, and an affirmation of counsel to the County Legislature"  asserting that "members of the County Legislature have stated that the Board's determination was inconsistent with the intent and understanding of the [County] Legislature in enacting the financial disclosure statute."*** 

The Supreme Court reviewed the submitted financial disclosure statements and "redacted confidential information to protect the Plaintiff and his family." The court also directed the Board to produce redacted copies of the financial disclosure statements to the Ways and Means Committee of the County Legislature. The Board complied with the court's directive and the Plaintiff appealed the court's ruling to the Appellate Division.

Citing Marbury v Madison , 1 Cranch [5 US] 137, the Appellate Division explained that a legislative body may not usurp a court's power to interpret and apply the law to the particular circumstances before it and it is beyond the authority of the County Legislature to determine that the Board's decision to withhold the Plaintiff's financial disclosure statements from public inspection was incorrect and "to take it upon itself to obtain the statements and provide for their public release." In the words of the court, "the County Legislature wrongly placed itself in the position of a reviewing court", opining that this action "is particularly disturbing where the purportedly aggrieved newspaper took no steps to vindicate its rights to disclosure of the financial statements by the Ethics Board."

Noting that the County Legislature entrusted to the Board the responsibility for receiving and resolving requests for access to financial disclosure statements filed with the Board, the Appellate Division indicated that the "proper remedy for seeking review of a Board determination denying public access to a governmental record is to seek judicial review, not for the County Legislature to arrogate to itself a judicial function reserved for the courts and the courts alone."

The Appellate Division also disagreed with Supreme Court's determination to redact "confidential information to protect the [Plaintiff] and his family" not withstanding its holding that Plaintiff's financial disclosure statements were subject to public disclosure.  The court observed that while the Board is required to redact information pertaining to categories of value from all financial disclosure statements made available for public inspection, Supreme Court cited no authority for its decision to make further redactions.

The County Legislature also contended that the resolution could be sustained as a valid exercise of its oversight authority. However, said the Appellate Division, the record before it did not reflect that either the County Legislature or its Ways and Means Committee was conducting any oversight of the Board. Rather, noted the court, "it is undisputed on the record" before it that the resolution was adopted "for the purpose of circumventing the Ethics Board's determination to deny public release of the petitioner's financial disclosure statements."

The Appellate Division thought it significant that that the County Legislature determined, without examining the Board's determination, that the Board was wrong and took it upon itself to reverse this specific determination through the enactment of the resolution. Neither federal, state, nor county law countenance such a procedure. Thus, ruled the court, Plaintiff's petition must be granted, and the Resolution adopted by the County Legislature annulled.

* Even if no request to withhold information from public inspection is made by an employee, the County Code provides that categories of value are confidential and that such information is to be redacted by the Board before a financial disclosure statement is made available for public inspection.

** The Resolution also stated that the County Code "says that financial disclosure statements are available for public inspection and there appear[ ] to be no exceptions in the law that justify withholding a financial disclosure statement from public inspection" and that "in enacting the financial disclosure law, it was the intent of this Legislature that financial disclosure statements be available to the public."

*** The Board, although named as a respondent, did not appear before the court.

The decision is posted on the Internet at:

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