Petitioner in this CPLR Article 78 action challenged the New York State Department of Financial Services' [DFS] denial of Petitioner's Freedom of Information Law (FOIL) request seeking "all documents and information received from third parties related to a ... consent order entered into between DFS and Deutsche Bank AG, Deutsche Bank AG New York Branch, and Deutsche Bank Trust Company of the Americas [Deutsche Bank]." Supreme Court dismissed the petition and the Appellate Division affirmed the lower court's ruling.
In Matter of Lane v County of Nassau, 221 AD3d 1008, among other decisions, New York courts have acknowledged that New York State's Freedom of Information Law [FOIL] is founded on the premise that the public is vested with "an inherent right to know and that official secrecy is anathematic to our form of government" and "FOIL ... imposes a broad duty on government agencies to make their records available to the public."
However, §36(10) of New York State's Banking Law provides that with respect to all reports of examinations and investigations, "correspondence and memoranda concerning or arising out of such examinations and investigations ... shall not be made public unless, in the judgment of the superintendent [of Banking], the ends of justice and the public advantage will be subserved by the publication thereof ...."*
The documents pursuant to FOIL in this instance were provided by Deutsche Bank to DFS during the course of its investigation of an alleged money laundering scheme by Danske Bank's Estonian branch. Accordingly, opined the Appellate Division, documents requested by Petitioner fall squarely within the ambit of Banking Law §36(10) and, in this instance, DFS has interpreted "correspondence," as the term appears in the Banking Law provision, to include not only written communications such as emails and letters, but also documents attached to, enclosed with, or obtained through its correspondence with regulated entities.
The Appellate Division sustained the Supreme Court's decision, opining "As the agency responsible for the administration and implementation of §36 of the Banking Law, DFS' construction of the statute is entitled to deference, as its interpretation is rational", citing Matter of Brooklyn Assembly Halls of Jehovah's Witnesses, Inc. v Department. of Envtl. Protection of City of N.Y., 11 NY3d 327 and Matter of Partnership 92 LP & Bldg. Mgt. Co., Inc. v State of N.Y. Div. of Hous. & Community Renewal, 46 AD3d 425, affd 11 NY3d 859.
Further, the court held "DFS's interpretation of 'correspondence' does not deviate from the statutory language or legislative history" nor does state law require DFS to provide "an index of withheld documents or explain which records are exempt and why they cannot be produced or redacted".
* N.B. The release of certain public records may be limited by statute. Examples of such limitations are set out in Education Law, §1127 - Confidentiality of records and §33.13 of the Mental Hygiene Law.
Click HERE to access the Appellate Division's decision posted on the Internet.