New York's freedom from information law: disclosure of public costs of a New York senator's "public interest" mailings.

AuthorSiris, Michael J.
  1. Introduction

    [A] free society is maintained when government is

    responsive and responsible to the public, and when the public is

    aware of governmental actions. The more open a government

    is with its citizenry, the greater the understanding and

    participation of the public in government.

    As state ... services increase and public problems become

    more sophisticated and complex and therefore harder to solve,

    and with the resultant increase in revenues and expenditures,

    it is incumbent upon the state ... to extend public

    accountability wherever and whenever feasible.

    The people's right to know the process of governmental

    decisionmaking and to review the documents and statistics

    leading to determinations is basic to our society. Access to

    such information should not be thwarted by shrouding it with

    the cloak of secrecy or confidentiality.

    ... [G]overnment is the public's business.(1)

    State legislators throughout the country have various "perquisites of power" which help perpetuate their incumbencies.(2) For example, in many states the taxpayer pays for a legislator's "public interest" mail which is ostensibly designed to educate his or her constituency(3) However, while purporting to perform some public purpose, such mailings are often "indistinguishable from campaign propaganda"(4) As the New York State Commission on Government Integrity (Commission) stated: "Another way in which incumbents can magically convert tax dollars into campaign contributions is through mass mailings and other forms of mass communication at election time. This practice is an abuse of the public trust, yet sadly -- as any observer of modern campaigns knows -- it is widespread."(5) It is almost as if those states which subsidize such mail have a public campaign finance system designed exclusively for the already well-entrenched and well-financed incumbents.(6)

    Taxpayer-financed public interest mailings are particularly helpful to and plentiful for legislators in New York State where incumbents already enjoy a uniquely high rate of reelection.(7) For example, a New York State senator is now annually allowed $14,000 of bulk mail (approximately 100,000 pieces of bulk mail),(8) $8500 in first class stamps,(9) two district-wide newsletters,(10) plus additional sums for committee chairpersons and ranking minority members.(11) Clearly, this is a generous allotment by any standard, especially when one considers that most challengers are often underfinanced.(12)

    In the case of the New York State Senate," the Senate's obdurate secrecy over disclosing details on individual member mailings compounded the problem of incumbency protection. While willing (and, indeed, perhaps required) to provide an aggregate number for postage for the entire Senate, the Senate had steadfastly refused to provide a member-by-member breakdown,(14) which was necessary to determine whether a particular senator exceeded New York's already generous limits.(15)

    In 1992, the New York State Senate's refusal to disclose member-by-member mailing expenditures collided with the public's right to know as expressed in the New York Freedom of Information Law (FOIL).(16) The Senate claimed that the author's FOIL request(17) for details on exactly how much "public interest" mail his opponent, Senator Tully, was generating at taxpayer expense was outside the scope of FOIL.(18) Even if the Senate was somehow legally insulated from such FOIL inquiries, which the New York Court of Appeals eventually held was not the case,(19) it would seem reasonable that the Senate, simply as a matter of good politics, would have voluntarily provided the information -- after all, it is not as though an accounting of Senator Tully's expenditures of public funds for an allegedly public purpose (i.e., "public interest" mailings to constituents) would have compromised any right of privacy. Incredibly, though, the Senate denied the FOIL request, and decided to fight the request in the judicial system at taxpayer expense.(20) After the Senate denied the FOIL request, the author filed suit to compel the Senate to disclose the details on how much taxpayer-financed public interest mail Senator Tully sent to his constituents.(21) Ultimately, in Weston v. Sloan,(22) the New York Court of Appeals held that FOIL required the Senate to disclose the details of Senator Tully's public interest mailings.(23)

  2. A Brief History: Exposure of the Legislative Branch (Federal and State) to Freedom of Information Laws

    1. State Freedom of Information Laws and Legislative Mailings

      Except for Mississippi, every state, including New York, now has some form of a freedom of information (FOI) law providing for public access to government records.(24) While a majority of such states have separate access statutes for records of the legislative branch,(25) several states have an express provision in their FOI laws that allows some form of access to legislative records.(26) As we shall see, New York's FOIL has a special section for the Legislature, access to which is greatly circumscribed compared to access to non-legislative agencies covered by FOIL.(27) Whether their FOI laws apply to details on public expenditures for legislative mailings, many states routinely provide such information.(28) In New York, too, the Assembly has routinely provided such information to the public,(29) leaving the New York State Senate isolated in the secrecy it tried to rationalize in Weston.

    2. The Federal Freedom of Information Act and Legislative Mailings

      Like New York's FOIL,(30) the Federal Freedom of Information Act (FOIA)(31) provides that, subject to certain exemptions,(32) each covered "agency" must produce records in response to a request which "reasonably describes such records and ... is made in accordance with published rules [of that agency]."(33) However, Congress is completely exempt from FOIA.(34) Nevertheless, although it is completely exempt from its own FOIA disclosure requirements, Congress, like the New York State Assembly, routinely provides to the public details on each member's publicly supported postage Costs.(35) Again, this congressional candor is in stark contrast to the New York Senate's reticence that precipitated the Weston litigation.

      While many states, in addition to New York,(36) patterned their FOI laws after FOIA,(37) no state copied FOIA's exemption of the legislative branch (i.e., the exemption of Congress from FOIA's coverage).(38) However, New York's FOIL approaches the federal exemption of Congress in that one seeking access under FOIL to New York State legislative records (as opposed to non-legislative "agency" records) must meet a higher standard by demonstrating that the requested legislative records fall within one or more categories in the FOIL section applicable to the Legislature.(39)

  3. Weston v. Sloan: Applicability of the New York Freedom of Information Law to the New York State Senate

    1. Structure of 1974 FOIL

      As enacted in 1974, New York's original FOIL(40) provided that a state agency,(41) presumably including the New York Legislature, "shall make available for public inspection and copying" information in eight specific categories.(42) In other words, New York's original FOIL placed the burden upon the person seeking the information to demonstrate that the information sought was within one or more of eight categories of information or documents available under FOIL from an "agency" as that term was originally defined. While the categories of information an agency had to disclose from 1974 to 1977 are somewhat analogous to the categories the Legislature eventually had to disclose by virtue of FOIL's amendment in 1977,(43) there are few cases construing the categories,(44) particularly section 88(2)(e) of the Public Officers Law,(45) the category on which the Weston petitioners based their FOIL request.(46) Thus, in Weston, the litigants and the courts were in unchartered waters.

    2. 1977 Amendment to FOIL

      In 1977, the New York Legislature dramatically altered FOIL and expanded its coverage,(47) except as to the Legislature and the Judiciary.(48) In effect, for an "agency," the Legislature completely reversed the presumption against FOIL disclosure.(49) Thus, after the 1977 amendment an "agency" had to disclose information unless an exemption applied to the information.(50)

      However, while the 1977 FOIL amendment generally liberalized FOIL, this liberalization did not extend to the Legislature or the Judiciary.(51) For information relating to the Legislature, the Legislature retained the original FOIL format, i.e., a person seeking information from the Legislature was still required to demonstrate that the requested information fell into one or more categories.(52) Moreover, under the 1977 amendment of FOIL, the Legislature created for itself a section(53) which left the burden upon the person seeking the information to demonstrate that the requested information was within the scope of an enumerated category.(54) Therefore, in order to prevail, the Weston petitioners had to demonstrate that information on Senator Tully's taxpayer-subsidized mailings fell within one or more of the categories enumerated in Public Officers Law section 88(2).

      The category at issue in Weston appeared in substantially the same form in the 1974 and 1977 versions of FOIL.(55) Under the original FOIL, an "agency," including the Legislature, had to produce the following:

      [I]nternal or external audits and statistical or factual

      tabulations made by or for the agency.(56)

      However, the 1977 FOIL required the Legislature, but not an "agency," to produce the following:

      [I]nternal 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 [i.e.,

      section 88] or any other applicable provision of law.(57)

      Thus, because the Weston petitioners relied on section 88(2)(e) to support their FOIL request, the issue in Weston was...

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