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:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03193.htm

.

A complaint asserting a claim under Labor Law §740.(2) -- the Whistle Blower Law -- need not identify the specific "law, rule or regulation" allegedly violated by the employer

A complaint asserting a claim under Labor Law §740.(2) -- the Whistle Blower Law -- need not identify the specific "law, rule or regulation" allegedly violated by the employer

Webb-Weber v Community Action for Human Servs., Inc., 2014 NY Slip Op 03428, Court of Appeals

Civil Service Law §75-b* and Labor Law §740(2)** are commonly referred to as "whistleblower statutes,” and prohibit the employer from taking retaliatory personnel action against an employee because the employee discloses, or threatens to disclose to a supervisor or to a public body, an activity, policy or practice of the employer that is in violation of law, rule or regulation.

In Webb-Weber the “narrow issue” before the Court of Appeals was whether a complaint asserting a claim under §740(2) must identify the specific "law, rule or regulation" allegedly violated by the employer. 

The Court of Appeals concluded that there is no such requirement, holding that  “[t]he reasonable interpretation is that, in order to recover under a §740 claim, a plaintiff must show that [he or] she reported or threatened to report the employer's "activity, policy or practice." Quoting Richard A. Givens’ statement in Practice Commentaries,*** the Court of Appeals said that “the practice --- not the legal basis for finding it to be a violation — appears to be what must be reported."

Thus, for pleading purposes, the court ruled that the complaint need not specify the actual law, rule or regulation violated, although it must identify the particular activities, policies or practices in which the employer allegedly engaged, so that the complaint provides the employer with notice of the alleged complained-of conduct.

The Court of Appeals observed that in order to recover under a Labor Law §740 theory, the plaintiff has the burden of proving [1] that an actual violation occurred, in contrast to merely establishing that the plaintiff possessed a reasonable belief that a violation occurred, citing Bordell v General Elec. Co., 88 NY2d 869, and [2] that the violation must be of the kind that "creates a substantial and specific danger to the public health or safety," citing Remba v Federation Empl. & Guidance Serv., 76 NY2d 801.

* Civil Service Law 75-b.2(a) provides as follows: A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action. "Improper governmental action" shall mean any action by a public employer or employee, or an agent of such employer or employee, which is undertaken in the performance of such agent's official duties, whether or not such action is within the scope of his employment, and which is in violation of any federal, state or local law, rule or regulation.

** Labor Law §740(2) provides as follows: Prohibitions. An employer shall not take any retaliatory personnel action against an employee because such employee does any of the following: (a) discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud; (b) provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any such violation of a law, rule or regulation by such employer; or (c) objects to, or refuses to participate in any such activity, policy or practice in violation of a law, rule or regulation.

*** Givens, Practice Commentaries, McKinneys Cons Laws of NY, Book 30, Labor Law §740, at 549 [1988 ed].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03428.htm
.

Dishonesty ruled incompatible with individual’s employment as a peace officer

Dishonesty ruled incompatible with individual’s employment as a peace officer

OATH Index No. 1186/14

Disciplinary charges were filed against an enforcement agent [Employee] alleging that he failed to report a missing chemical spray canister and other agency equipment, and making false statements about what happened to them.

The agency’s attorney contended that in view of Employee’s status with the agency as a peace officer, the appropriate penalty was termination because of Employee’s admitted dishonesty is incompatible with his law enforcement position.

Noting that Employee persistently refused to provide a truthful explanation for the loss of the equipment, Oath Administrative Law Judge John B. Spooner recommended termination of employment as "integrity is vital" to Employee's job duties as a peace officer, which include providing truthful and accurate testimony at hearings.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/00_Cases/14-1186.pdf
.

The 2014 Anderson Series Seminar’s Education Reform and The Common Core session is scheduled for May 20, 2014

The 2014 Anderson Series Seminar’s Education Reform and The Common Core session is scheduled for May 20, 2014

Source: Government Law Center, Albany Law School

The Albany Law School’s Government Law Center will host the next 2014 Annual Warren M. Anderson Breakfast Seminar Series, a nonpartisan hour-long breakfast program, on May 20, 2014 from 8-9 a.m. in the Assembly Parlor, at the State Capitol, 3rd FL. The program continues to be offered free of charge, but space is limited.

The speaker will discuss Education Reform and The Common Core.

For those interested, each seminar is accredited for one hour of transitional and non-transitional CLE credit in the area of “Professional Practice.”

To register or to obtain more information, contact Ms. Amy Gunnells at agunn@albanylaw.eduor telephone 518-445-2329. 

The Comptroller has the authority to review and report on the billing practices of a medical provider not a participating physician within the NYSHIP Empire Plan network

The Comptroller has the authority to review and report on the billing practices of a medical provider not a participating physician within the NYSHIP Empire Plan network

Martin H. Handler, M.D., P.C. v DiNapoli, 2014 NY Slip Op 03191, Court of Appeals

Among the patients treated by a physician and a medical group [Providers] were individuals insured by the Empire Plan, New York State's primary health benefit plan. The Empire Plan pays about 80% of the charges billed for the medical services provided to individuals covered by the Empire Plan. Providers challenged the authority of the State Comptroller to review their records as part of an audit of billing practices in the health care industry for claims paid by the Empire Plan

The Comptroller contended that he had the authority to review and otherwise report on medical provider’s billing practices as part of its audit of State expenditures. The Court of Appeals agreed.

Among the issues considered by the court were “co-payments” incorporated in the fee structure.

Participating providers have an agreement with United that specifies the fees they may charge. These providers bill claims, less a patient “co-pay,” to United Healthcare Insurance of New York [United] which processes and pays claims made by Empire Plan beneficiaries. In contrast, non-participating providers charge market rates for their services and bill the patient directly. United then reimburses the patient 80% of either the actual fee charged or the "customary and reasonable charge" for the service, whichever is lower. The patient is responsible for paying the provider’s bill, including the 20% that is not paid by United, from his or her personal funds.

Non-participating providers have a legal duty to collect patients' co-payments and failure to collect these fees can result in civil and criminal penalties for insurance fraud.*  

According to the decision, the non-participating provider's failure to collect a co-payment from an Empire Plan member inflates a claim's cost and adversely impacts the State's fisc. A provider that charges $100 for a service, and who collects $80 in State money, must collect $20 from the Empire Plan member. In the event that the provider does not collect the co-payment, it has provided a medical service for $80, not $100, and the State should have paid only $64 of that cost.

After the Comptroller had examined Providers billing records for certain periods of time, the auditors found Providers routinely waived the co-pay that was to be paid by Empire patients and that this resulted in more than $1.500,000 in overpayments by United during this period. The Comptroller recommended that United recover the overpaid sums of money, advise Providers of the advantages of participating in the Empire Plan, and contact the Department of Civil Service to develop a plan for preventing future waiver of required co-payments. The Comptroller took no independent enforcement action.

Providers then filed separate combined Article 78 and declaratory judgment actions against the Comptroller and United, challenging the Comptroller's authority to audit their books and sought judicial relief that included enjoining publication of the results of the audit and enjoining United from collecting any alleged overpayments.

Supreme Court granted the petitions in part and enjoined United from taking action based on the Comptroller’s audit results. In separate decisions, Supreme Court concluded that the Comptroller lacked constitutional authority to audit Providers because Providers are "not a political subdivision of the State."

The Appellate Division found the Comptroller has a constitutional duty to audit payments made by the State, and, as a part of that duty, the Comptroller has the authority to conduct post-audit reviews of payments made to Providers. The Appellate Division explained that were the Comptroller to lack authority to audit health care providers' payment records, "no other entity . . . would retain oversight" to prevent overpayments that result from waived co-insurance fees. The Appellate Division remitted the cases to Supreme Court for further proceedings to address Providers’ claims that the audit findings were arbitrary and capricious and lacked a rational basis. Supreme Court dismissed Providers’ petitions and they appealed to the Court of Appeals ”as of right under CPLR 5601(d), bringing up the prior orders of the Appellate Division, which involved a substantial constitutional question.” 

Providers contended that the Comptroller's audits exceeded the constitutional limitations on its powers because, as non-participants in the Empire Plan, they neither have a contract with the State nor receive State funds, and the Comptroller cannot audit them. 

Under the current provisions of law, the Comptroller is to audit State payments and receipts and the Legislature is prohibited from assigning administrative tasks to the office in order to protect "the independent character of the Comptroller's audit function."

Further, Civil Service Law §167 (7), provides that the Comptroller is to audit payments to the State's health insurance vendors whereby "The amounts required to be paid to any contracting corporation under any contract [with NYSHIP] shall be payable from such health insurance fund as audited by and upon the warrant of the comptroller[.]"

Thus, said the court, both the Constitution and statutes require the Comptroller to ensure proper billing and payment for the Empire Plan. In order to accomplish its legally mandated duties to prevent unauthorized payments and overpayments, the Comptroller must perform both pre- and post-audit review of Empire Plan payments.

The Court of Appeals rejected Providers’ theory that United’s role as a conduit severs any connection between the State funds and the their billing practices, putting the records beyond the Comptroller's reach, explaining that the Constitution does not limit the Comptroller's authority in this way and the fact that the State relies on a third-party conduit, United, does not change the character of the funds.

Holding that the Comptroller's limited examination of Providers' billing records amounted to a post-audit of State payments and was permitted by the Constitution, the Court of Appeals ruled that the judgments of Supreme Court and the prior orders of the Appellate Division reviewed should be affirmed, with costs.

* (see Insurance Law §403 [c]; Penal Law § 176.05 [2]).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03191.htm
.