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New York Post Corp. v. Moses

10 N.Y.2d 199 Court N.Y. Decision date 1961-07-07 English

Decision Majority — Burke, J. · Dissent — *206 Chief Judge Desmond (dissenting). · Dissent — Fuld, J. (dissenting).

Contents

Majority

p. 199
In the Matter of New York Post Corporation, Respondent, v. Robert Moses et al., Comprising the Triborough Bridge and Tunnel Authority, Appellants.
Argued May 17, 1961;
decided July 7, 1961.
p. 200
Samuel I. Rosenman, Max Freund, Andrew J. Schoen and Donald I. Laventhall for appellants.
I. No common-law rule gives the Post a clear, legal right to inspect Triborough’s books and records. (Matter of North v. Foley, 238 App. Div. 731 ; People ex rel. Henry v. Cornell, 32 How. Prac. 149, 47 Barb. 329 , 35 How. Prac. 31; Matter of Egan, 205 N. Y. 147 .) II. Triborough is not subject to the provisions of section 51 of the General Municipal Law. (Kennedy v. Fehlhaber Pile Co., 263 App. Div. 819 ; Schieffelin v. Komfort, 212 N. Y. 520 ; Matter of Reynolds, 202 N. Y. 430 ; Brooks v. Wyman, 246 N. Y. 534 ; Blackburn v. Clements, 297 N. Y. 971 ; Lassin v. Board of Educ. of City of N. Y., 215 App. Div. 652 ; Halleran v. City of New York, 132 Misc. 73 , 226 App. Div. 785 ; Klein v. O’Dwyer, 192 Misc. 421 ; Borek v. Golder, 190 Misc. 366 ; Taylor-Fichter Steel Constr. Co. v. Triborough Bridge & Tunnel Auth., 241 App. Div. 75 ; Matter of Egan, 205 N. Y. 147 ; Commissioner of Internal Revenue v. White’s Estate, 144 F. 2d 1019 .) III. The files, books and records of the Triborough here sought to be inspected are not records kept in a “ public office ” within the meaning of that phrase as it is employed in section 66 of the Public Officers Law. Nor do they constitute public records which they must also be in order to satisfy the requirements of said section. In any event, the inspection granted by the order below could not possibly be justified by
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section 66, which does not authorize an inspection of records but only requires the public officer involved to make transcripts of specifically identified documents. (Matter of Natelson v. Portfolio, 291 N. Y. 290 ; Matter of Blandford v. McClellan, 173 Misc. 15 ; Matter of Erenberg v. Brill, 10 A D 2d 769 ; People ex rel. Stenstrom v. Harnett, 131 Misc. 75 , 224 App. Div. 127 , 249 N. Y. 606 ; People ex rel. Schweller v. Prendergast, 89 Misc. 584 ; Trimble v. Johnston, 173 F. Supp. 651 ; Matter of New York Post Corp. v. Leibowitz, 2 N Y 2d 677 ; Matter of Walker v. Watson, 201 Misc. 556 , 280 App. Div. 760 .) IV. The Public Authorities Law is a comprehensive statute, regulating the Authorities created thereunder, which has specific provisions dealing expressly with inspection of their files. The fact that the Public Authorities Law makes no provision for inspection by the public of the Triborough’s files evidences the Legislature’s intent not to permit such inspections. (Fulmer v. United States, 83 F. Supp. 137 ; Matter of Plumbing Assn. v. Thruway Auth., 5 N Y 2d 420 .) V. The ratio decidendi of Borah v. White County Bridge Comm. ( 199 F. 2d 213 ), based on facts strikingly alike to those here involved, is peculiarly applicable to this proceeding and shows that the court below erred. (McGovern Trucking Co. v. Moses, 16 Misc 2d 72 , 277 App. Div. 758 .) VI. Even assuming, arguendo, that the Post could show a clear, legal right of inspection, the order below is far too extensive in scope and should be reversed by the court in the exercise of its discretion. The articles concerning Triborough heretofore printed in the Post furnish additional grounds for reversal. (Matter of Coombs v. Edwards, 280 N. Y. 361 ; Matter of Ahern v. Board of Supervisors of Suffolk County, 7 A D 2d 538 , 6 NY 2d 376 ; Matter of Lord, 167 N. Y. 398 .) VII. No constitutional questions involving freedom of press are here involved. The Post’s rights are the same as those of any citizen. . (Matter of United Press Assns. v. Valente, 308 N. Y. 71 ; Trimble v. Johnston, 173 F. Supp. 651 .)
M. Marvin Berger and Burton M. Marks for respondent.
I. At common law the right of inspection was given to every citizen and taxpayer and it may be abridged only by an explicit statutory enactment. (Matter of Egan, 205 N. Y. 147 ; Clement v. Graham, 78 Vt. 290 ; People ex rel. Stenstrom v. Harnett, 131
p. 202
Misc. 75 , 224 App. Div. 127 ; Matter of North v. Foley, 238 App. Div. 731 ; State ex rel. Ferry v. Williams, 41 N. J. L. 332 ; Casey v. McPhail, 2 N. J. Super. 619 ; Fagan v. State Bd. of Assessors, 80 N. J. L. 516 ; Pressman v. Elgin, 187 Md. 446 .) II. Triborough is a l( board * # * acting for or on behalf of (a) * * * municipal corporation ” and its books and records are public records and open “ to the inspection of any taxpayer.” (Commissioner of Internal Revenue v. White’s Estate, 144 F. 2d 1019 ; Brush v. Commissioner, 300 U. S. 352 ; Borek v. Golder, 190 Misc. 366 .) III. Section 66 of the Public Officers Law expresses a strong legislative policy to confer a clear statutory right to inspect the records sought unless the statute which created the Authority or some other statute specifically forbids such an inspection. (Matter of Walker v. Watson, 201 Misc. 556 , 280 App. Div. 760 ; Matter of New York Post Corp. v. Leibowitz, 208 Misc. 322 , 2 N Y 2d 677 ; Matter of Plumbing Assn. v. Thruway Auth., 5 N Y 2d 420 ; Ciulla v. State of New York, 191 Misc. 528 ; Easley v. New York State Thruway Auth., 1 N Y 2d 374 ; Matter of Erenberg v. Brill, 10 A D 2d 769 .) IV. The Public Authorities Law does not regulate inspection of Triborough’s records but deals with the filing of reports. The Legislature’s intent is to permit inspection by the public under relevant statutory provisions. V. Borah v. White County Bridge Comm. ( 199 F. 2d 213 ) is inapplicable to this proceeding. (Chicago Tit. & Trust Co. v. Danforth, 236 Ill. 554 ; United States v. White County Bridge Comm., 275 F. 2d 529 .) VI. The order of the Appellate Division is, if anything, too narrow in scope but was warranted in the exercise of discretion of the court below. (Matter of Andresen v. Rice, 277 N. Y. 271 ; Matter of Bergerman v. Murphy, 199 Misc. 1008 , 278 App. Div. 388 , 303 N. Y. 762 ; Matter of Zielinski v. Harding, 177 Misc. 773 .) VIL Refusal of access to Triborough’s records would violate the Post’s constitutional rights. (Times Picayune v. United States, 345 U. S. 594 ; Matter of United Press Assns. v. Valente, 308 N. Y. 71 ; Bridges v. California, 314 U. S, 252 ; Grosjean v. American Press Co., 297 U. S. 233 ; Lovell v. Griffin, 303 U. S. 444 ; Near v. Minnesota, 283 U. S. 697 ; Craig v. Harney, 331 U. S. 367 .)

The order under review, granting respondent the right to inspect books, records and files of the Triborough

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Bridge and Tunnel Authority, reversed Special Term, which had found (1) that the provisions of section 66 of the Public Officers Law and section 51 of the General Municipal Law do not apply to this Authority, and (2) that petitioner has not shown that special interest requisite to obtain an inspection of the records of the Authority. We conclude that Special Term was correct.

Decisions such as Benz v. New York State Thruway Auth. ( 9 N Y 2d 486 ) are expressive of a constitutional and legislative policy that public authorities should be subjected only to those procedures which have been specifically mandated. “ [Tjhere is no jurisdiction in any court of any suit against [an Authority] except as the Legislature has in terms created such jurisdiction ” (supra, p. 489). We are, therefore, restricted initially to a search for that provision of the Public Authorities Law which gives a citizen and taxpayer, by virtue of that status, a right of inspection.

Although the Legislature has from time to time seen fit by appropriate legislation to subject Authorities to various degrees of control and inspection (Public Authorities Law, §§ 552, 560, 2500, 2502, 2503; State Commission of Investigation Act [L. 1958, ch. 989], § 2, subd. 1, par. b; subd. 11, par. c; Public Authorities Law, § 2501, added,by L. 1961, ch. 615), there is no provision which has authorized a tollpayer or citizen to examine the papers of an Authority.

Eespondent, aware of the lack of specific legislation, argues that it has such a right under the general provisions of law applicable to public records of government (Public Officers Law, § 66; General Municipal Law, § 51). Such a contention may be sustained here only if the Authority is an agent of the city (§51) or constitutes a “ public office ” (§66).

In this regard the respondent must fail. “ [T]he cases confirm the conclusion that a public authority enjoys an existence separate and apart from the State, even though it exercises a governmental function”. (Matter of Plumbing Assn. v. Thruway Auth., 5 N Y 2d 420 , 424.) The language in that opinion clearly points to our conclusion here:

“ Although created by the State and Subject to dissolution by the State, these public corporations are independent and autonomous, deliberately designed to be able to function with

p. 204
a freedom and flexibility not permitted to an ordinary State board, department or commission” (p. 423).

‘ ‘ However close such relationship [between the State and the Authority] may be, though, it is abundantly clear that the Authority stands on its own feet, transacts its business affairs through its own personnel and on its own initiative and is not subject to the strict requirements imposed upon a board or department of the State by a provision such as section 135 of the State Finance Law” (pp. 424b-425). (See, also, Bird v. New York State Thruway Auth., 8 A D 2d 495 , 496-497.)

Matter of New York Post Corp. v. Leibowitz ( 2 N Y 2d 677 ) is not authority to the contrary. 11 The specific issue presented in [that] case * * # relates to a transcript merely of the charge given by the judge to the jury” (p. 687).

Section 51 of the General Municipal Law having been clearly construed as not giving a right of action against officers or agents of the State (Bull v. Stichman, 298 N. Y. 516 , motion for rearg. den. 300 N. Y. 460 ; Schieffelin v. Komfort, 212 N. Y. 520 ; County of Albany v. Hooker, 204 N. Y. 1 ), it can only be applicable here if the Authority is an arm of the city. We find no such close connection. While the city and its officials have duties of supervision, they are not such as to enable us to conclude that the Authority acts for or on its behalf (see, also, Matter of Reynolds, 202 N. Y. 430 , 441, wherein it was held that no right of action existed under section 51 against the City Board of Elections; “ The defendants, the city board of elections, doubtless are local officers, but no relation of principal and agent, or of master and servant, exists between them and the city”). The true beneficiary of the actions of this public benefit corporation has been clearly designated by subdivision 4 of section 3 of the General Corporation Law: “A ‘ public benefit corporation ’ is a corporation organized to construct or operate a public improvement wholly or partly within the state, the profits from which enure to the benefit of this or other states, or to the people thereof.”

This does not present, as petitioner would have us believe, a “ system whereby these immense expenditures of money by the Authority, created for the benefit of the people, could be made without any right of the people’s representatives to investigate the conduct of the Authority”. The Legislature,

Dissent

p. 205
creating the Authority by special act (L. 1946, ch. 954; N. Y. Const., art. X, § 5), has provided that it must report to, and be subject to investigation by, the State Comptroller and City Comptroller, the Chairman of the Senate Finance Committee, the Chairman of the Assembly Ways and Means Committee, the State Commission of Investigation, the Mayor of the City of New York, and even a trustee designated to represent a proportion of the bondholders. (Public Authorities Law, §§ 552, 560, 2500, 2502, 2503; State Commission of Investigation Act [L. 1958, ch. 989], § 2; 1952 and 1960 General Bond Resolutions of Triborough Bridge & Tunnel Auth.). Had the Legislature desired the object sought by the respondent, it could easily have so provided in the special act, or in those provisions applicable to all public authorities. Had the people favored that result, the extensive constitutional provision, adopted in 1938, would have so stated.

We must, therefore, conclude that when a corporate entity is specifically created by comprehensive and complete legislation which protects the State and city from liability and frees the Authority from restraints otherwise applicable to agencies of the government, there is no reason to invoke laws general in nature. Considered thus, neither of the statutes urged by petitioner is applicable, and the records and files of the Authority do not constitute 1 ‘ public records ’ ’ which might be deemed open to inspection by any member of the public.

It is significant that, even in the case of parties with special interests, the Legislature has taken pains to precisely define the remedies available to them against an Authority (cf. Public Authorities Law, §§ 361-b, 368, subds. 4, 5).

Though we are strongly in favor of enforcing the government’s duty to disclose to its citizens the course of conduct of its various departments, in the ease of a public authority it is for the Legislature, rather than the courts, to decide to what extent its operations may be subjected to public scrutiny. Where the Legislature has provided specific means for supervision, the courts may not engraft amendments which the Legislature has not even impliedly sanctioned.

Accordingly, the order of the Appellate Division should be reversed and that of Special Term reinstated, with costs in this court and in the Appellate Division.

Section 51 of the General Municipal Law is in part as follows: “ All books of minutes, entry or account, and the books, bills, vouchers, checks, contracts or other papers connected with or used or filed in the office of, or with any officer, board or commission acting for or on behalf of any county, town, village or municipal corporation in this state are hereby declared to be public records, and shall be open, subject to reasonable regulations to be prescribed by the officer having the custody thereof, to the inspection of any taxpayer.”

Petitioner seeks inspection of books, minutes and contracts of appellant Triborough Bridge and Tunnel Authority. If, therefore, the Triborough Authority is a board acting on behalf of New York City, section 51 (supra) is direct authority for granting the petition. The status of any Authority is difficult to assign to one of the traditional categories or bodies of public government, and there is no precise statute that tells us in so many words whether the Triborough Authority is “ acting for or on behalf of ” the City of New York. Obviously it is. The Authority itself so stated during the litigation which produced tax exemption for its bonds —- Commissioner of Internal Revenue v. White’s Estate ( 144 F. 2d 1019 ).

And definite criteria are available. In Easley v. New York State Thruway Auth. ( 1 N Y 2d 374 ) we examined the statutory description of the Thruway Authority and because of the close relationship of that Authority with the State held that it was at least for purposes of Court of Claims jurisdiction “ an arm or agency of the State ” (p. 376). When we apply the same kind of tests to the Triborough Authority, we necessarily conclude that it is an arm or agency of the city or, at least, is a board ‘ ‘ acting on behalf of ’ ’ the city. The relevant statutes are sections 550 et seq. in title 3 of article 3 of the Public Authorities Law. From them we learn that all the members of this Authority are appointed by the Mayor of New York City and the appointment and promotion of all its employees are under the jurisdiction of the Municipal Civil Service Commission. Not only may the Triborough Authority acquire property by purchase or condemnation in the name of the city but the city may similarly acquire property by purchase and condemnation for the Authority and, most important (see

Dissent

p. 207
Easley, supra), all rights and property of the Triborough Authority will on the payment of the Authority’s bonds vest in the City of New York as owner. All of the properties and facilities which the Authority has created or taken over and which it operates are within the City of New York and are of kinds which in other cities are managed directly by the cities themselves. The City Comptroller is the fiscal agent of the Authority and is authorized to examine its books and accounts and the Authority under certain conditions is entitled to use city employees and facilities and to engage the Corporation Counsel of the city as a legal adviser. Beal property which has been acquired in the name of the city but at the expense of the Authority may be sold or leased by the Authority as the agent of the city. There is no doubt that the Triborough Bridge and Tunnel Authority is a public body exercising functions municipal in character within the City of New York and which, except for financing and similar necessities, would be carried on by the City of New York itself.

The legislation applicable to the various Authorities is mostly ad hoc, a “ wilderness of special instances ”, so policy considerations to some extent control us in deciding whether particular statutes which do not mention Authorities do or do not apply to them. As to some such statutes (see Matter of Plumbing Assn. v. Thruway Auth., 5 N Y 2d 420 , 423) we deny applicability because there seems no reason or necessity for reading them as applicable and applicability would destroy the ‘ ‘ freedom and flexibility ” necessary for functioning. But section 51 (supra) is a statute of broad sweep applicable to all governmental bodies in the State except those which are part of the State government. The high policy purpose of the part of section 51 with which we are concerned is to permit taxpayers to find out what has been done or is proposed to be done as to public business by officers or boards acting on behalf of counties, towns, villages and cities (see, also, Public Officers Law, § 66). It is in the public interest that such “ right to know ” statutes be made usable wherever possible — that is, wherever there is no positive statutory law to the contrary.

The order should be affirmed, with costs.

I agree with the Chief Judge as to the impact of section 51 of the General Municipal Law, but I

p. 208
believe — as the unanimous Appellate Division did—that section 66 of the Public Officers Law also gives a member of the public, including a newspaper, the right to inspect the Authority’s books and records. As we wrote in Matter of New York Post Corp. v. Leibowitz ( 2 N Y 2d 677 , 685-686), which also dealt with section 66, “ In construing statutory provisions, the spirit and purpose of the statute and the objectives sought to be accomplished by the legislature must be borne in mind. * * * Turning to section 66 of the Public Officers Law, the provision before us, there is no doubt that it expresses a strong legislative policy to make available to public inspection and access all records or other papers kept ‘ in a public office, ’ at least where secrecy is not enjoined by statute or rule. Effectuation of the policy in favor of full publicity accordingly demands the broadest possible interpretation of the scope and content of that section, so far as some overriding consideration of policy does not forbid.”

The public is entitled to know how a public office, be it denominated a Department of State Government, a Commission or an Authority, is functioning and carrying on its affairs. We should not strain to insulate such an office from those whom it is set up to serve. As long as the inspection sought by the petitioner will not upset or interfere with the work of the office, it should not be denied.

I do not read Benz v. New York State Thruway Auth. (9NY 2d 486) as “ expressive of a constitutional and legislative policy that public authorities should be subjected only to those procedures which have been specifically mandated”. The Benz case did no more than hold that the Court of Claims has exclusive jurisdiction of actions brought against the Thruway Authority and, since that was so, the court could not entertain a suit against the Authority, sounding in equity, for rescission or reformation of one of its contracts. As a matter of fact, I suggest that the Benz decision points up the “ public office ” character of the Authority since it is treated so much like the State itself that it may be sued only in the Court of Claims.

All must agree that section 66 may, as a matter of construction, be reasonably read to require the Authority to submit its papers to public examination and inspection. I recognize that, in the final analysis, our decision turns on considerations of policy and

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I perceive none which stand in the way of the desired examination and inspection.

I would, therefore, affirm the order of the Appellate Division.

Judges Dye, Froessel, Van Voorhis and Foster concur with Judge Burke ; Chief Judge Desmond and Judge Fuld dissent in separate opinions in each of which the other concurs.

Order reversed, etc.

Cases cited

Statutes and regulations cited