Weston v. Sloan

OPINION OF THE COURT

Petitioners are a registered voter and an unsuccessful candidate for the Seventh District State senatorial seat held

On September 16, 1992, petitioner Weston requested from respondent Sloan, the Senate officer charged with responding to FOIL requests, the following records: the number of newsletters, bulk-rate mailings and first-class mailings sent by Senator Tully, either in his role as a Senator or a Committee Chairman, between January 1, 1991 and the date of the letter, and a copy of each; the total cost of postage for the newsletter, the bulk-rate mailings, and the first-class mailings; the total cost of printing and preparing the mailings; and, if any of the mailings were specifically targeted, the number of recipients and the election districts which were the targets. Respondent denied the request, asserting that the information was not available pursuant to FOIL. Upon administrative appeal, the Senate Majority Counsel sustained the denial, on the more particularized ground that the information requested was not specifically included in the list of legislative records available for public inspection and copying either under Public Officers Law § 88 (2) or section 2 of the Rules and Regulations Relating to the Public Inspection and Copying of Legislative Records, the Senate rules promulgated to implement FOIL. This proceeding followed.

Supreme Court granted petitioners’ application, annulling respondent’s determination and directing that he provide the information requested. The court based its ruling on the general principle underlying FOIL: the presumption that the records of government should be accessible to the public under the public’s inherent right to know the processes of government decision-making. The Appellate Division reversed. It concluded that access to the records of the Legislature, as opposed to those of public agencies, is limited to the specific categories listed in section 88 of the Public Officers Law, and that no portion of the statute, or any other applicable provision of law, mandates disclosure of the information requested by petitioners.

Article 6 was reenacted in 1977 to expand the scope of FOIL and make presumptively available virtually all agency records unless otherwise specifically exempted (see, Public Officers Law § 87; Matter of Capital Newspapers v Burns, supra, at 565-567 ; Matter of Farbman & Sons v New York City Health & Hosps. Corp., supra, at 79-80 ). The 1977 legislation changed the format of the statute, however; while it expanded agency disclosure it excepted the Legislature and the judiciary from the definition of agencies (see, Letter of Senator Ralph J. Marino, Bill Jacket, L 1977, ch 933; Public Officers Law § 86 [3]). Instead, the Legislature added a new section 88 which provided for access under FOIL to certain specified State legislative records — the same types of records all agencies were required to provide under the more limited 1974 version of the statute. The effect of this was to make agency records more available to FOIL applicants but to retain the limitations on disclosure of legislative records unless disclosure was specifically authorized under the statute.

In this proceeding, petitioners rely on the language of section 88 (2) (e) which authorizes disclosure of "internal or external audits and statistical or factual tabulations of, or with respect to, material otherwise available for public inspection and copying pursuant to this section or any other applicable provision of law”. They contend the records sought are "statistical or factual tabulations” with respect to "material otherwise available for public inspection”.

Analysis starts by noting that the Legislature in its declaration has recognized that documents and statistics are part of

There remains the question of whether the factual tabulations are "of, or with respect to,” material made available either under section 88 (2), or under some other applicable provision of law.

Section 88 (2) (a) requires that the Legislature make available for public inspection and copying "bills and amendments thereto, fiscal notes, introducers’ bill memoranda, resolutions and amendments thereto, and index records”. Petitioners contend that insofar as the records are "in relation to” an item contained in the 1992 Budget Bill, they are disclosable under FOIL; respondent maintains that the correct interpretation of this provision requires disclosure solely of records relating to the introduction and passage of a bill, that once the bill is enacted into law the records no longer come within

The Budget Law for the 1992 fiscal year appropriated and authorized the payment of $4,000,000 in public moneys for postage and printing expenses incurred by members of the Senate. To the extent that "factual tabulations” are maintained of these expenses, they must be disclosed pursuant to a FOIL request, as they are data "with respect to” material made available by section 44 of the Legislative Law. However, because copies of the newsletters and, presumably, information on targeted mailings would not be included in such factual tabulations, these items are not subject to mandatory disclosure.

Accordingly, the order of the Appellate Division should be modified in accordance with the opinion herein, without costs, and, as so modified, affirmed.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order modified, etc.