307 N.Y. 132 | NY | 1954
This appeal concerns whether reports by the commissioner of investigation to the Mayor of New York City must be made public. The contention of appellant is that the commissioner is a confidential assistant to the Mayor, and that
A dissenting opinion was written at the Appellate Division by Mr. Justice Bbeitel.
The genesis of this controversy was a letter dated June 27, 1951, written to the Mayor by Alfred E. Santangelo, which contained several charges reflecting upon the conduct of the commissioner of correction. The two most provocative of these charges were that special favors had been granted to a prisoner at Bikers Island, and that the correction commissioner had engaged in anti-Semitism by discriminating against employees in the department of correction.
The petition alleges that in July, 1951, the Mayor directed the commissioner of investigation to conduct an investigation into these charges, that such an investigation was made lasting more than eight months, that the commissioner of investigation delivered a complete report to the Mayor in May, 1952, but that this report has not been made public notwithstanding demands made
The functions, powers and duties of the commissioner of investigation are set forth in section 803 of the City Charter. That section states:
£ £ § 803. Powers and duties. — The Commissioner:
££ 1. Shall make any investigation directed by the mayor or the council.
£< 2. Is authorized and empowered to make any study or investigation which in his opinion may be in the best interests of the city, including but not limited to investigations of the affairs, functions, accounts, methods, personnel or efficiency of any agency.”
The following section (804) states that££ There shall be a complaint bureau in the department which shall receive complaints from the public.” The next section (805) empowers the commissioner of investigation and his deputies to compel the attendance of witnesses, to administer oaths and to examine such persons as he may deem necessary ££ in public or private hearings ”. Section 803-1.0 of the New York City Administrative Code describes the duties of the commissioner in reporting results of investigations, as follows:
££ § 803-1.0 Reports of commissioner. — The commissioner shall report:
££ 1. To the council, the results of any investigation directed by the council.
£t 2. To the mayor, the results of all other investigations.” Section 51 of the G-eneral Municipal Law declares papers on file in the offices of municipal corporations to be public records,
In addition to the privacy accorded to the records of the police and law departments, it is thus provided that inspection by taxpayers shall not be mandatory of papers prepared by or for the comptroller for use in proceedings for the adjustment or payment of claims against the city or its agencies, or by or for legal counsel for use in actions or proceedings to which the city or its agencies are parties, or of papers prepared “ for use in any investigation authorised by this charter(Italics supplied.)
The decision of this appeal depends upon the interpretation of the last phrase. It has been construed in different ways by Special Term, by the majority of the Appellate Division, First Department, and in his dissenting opinion by Associate Justice Breitel. Special Term went farthest in requiring publicity for everything. Citing an English case (Herbert v. Ashburner, 1 Wils. K. B. 297) Special Term stated that, in general, “ A
Developing this thought, appellant’s counsel slates in the brief:
" A report of the Commissioner of Investigation to the Mayor, prior to its transmission to the Mayor’s office, is plainly a paper prepared for use in an investigation, since its very purpose is to be used by the Mayor in an investigation ordered by him, or undertaken by the Commissioner of Investigation on his own initiative, subject to the duty to report its results to the Mayor. Transmission to the Mayor does not alter this characteristic of the report. The investigation still continues
“ After examining the report, the Mayor may direct that the investigation be continued or extended, and that further reports be submitted, or that the investigation be held in abeyance pending developments. In all these instances, the report clearly continues to be used in the investigation.
“ If the Mayor terminates the investigation after receiving a report, it is not thereby divested of its protected Charter status as a paper prepared for use in an investigation.”
In construing these sections of the charter and of the Administrative Code, both sides have outlined the history of the office of commissioner of investigation, and have discussed the probable' public policy underlying his functions in order to aid in interpreting these clauses.
Some observations can be made with assurance. Special Term’s quoted comment that a municipal corporation can have no private papers is an overstatement, inasmuch as that would fail to concede exemption to records of the departments of police or of law, or of the comptroller in case of proceedings to adjust or pay claims against the city, or of papers prepared for use in investigations authorized by the charter. In these respects, sections 893 and 894 supersede section 51 of the General Municipal Law, and section 1545 of the Greater New York Charter, thus rendering irrelevant such decisions as Matter of Egan v. Board of Water Supply (205 N. Y. 147); Matter of North v. Foley (238 App. Div. 731); Matter of Ihrig v. Williams (181 App. Div. 865, affd. 233 N. Y. 670); Matter of Becker v. Lunn (200 App. Div. 178); Matter of Sears Roebuck & Co. v. Hoyt (202 Misc. 43); Matter of Blanshard v. O’Brien (N. Y. L. J., Dec. 6, 1933, p. 2113, col. 5). More nearly analogous is section 6 of the Executive Law (the so-called Moreland Act) authorizing the Governor “ either in person or by one or more persons appointed by him for the purpose ” to examine and investigate the management and affairs “ of any department, board, bureau or commission of the state ”. Justice Bbeitel points out in his dissenting opinion that such reports are not subject to mandatory public inspection. The investigation for the Mayor, which is the subject of this
Views of what is the best policy in such a matter bear upon our decision of this appeal only insofar as they may enlighten concerning the probable intention of the Legislature in adopting these provisions of the City Charter and of the Administrative Code. A significant study was made by the Committee on Municipal Affairs of the Association of the Bar of the City of New York, which was published in its December, 1952, Record. This study is entitled “ Report on Office of Commissioner of Investigation ’ ’, and it states that the committee was instructed to inquire and report as to the propriety and desirability of any changes regarding the status or functions of the commissioner, “ and particularly as to reports by the Commissioner to the Mayor ’ ’. The report recites the creation of the position in 1873, then known as commissioner of accounts, and states that during the second decade of the existence of the office, the commissioner of accounts became in effect “ the Mayor’s eye ”, serving “ principally as a means by which the Mayor could privately obtain accurate information and thus supervise the operations of the city government more effectively. The relation between the Mayor and the Commissioner of Accounts thus became one of special personal confidence; indeed, the Commissioners of Accounts were at that time the only department heads removable at the Mayor’s pleasure.” The office went into eclipse at about the time of the commencement of World War I, but the report recites its revival in more recent years. Attention is called to
"Basically, the Commissioner is and should be a staff assistant to the Mayor. The quality of the City’s administration is and should be the responsibility of the Mayor. Giving the Commissioner a quasi-independent status would interfere with the effective- performance of the duties of a well-intentioned Mayor and would furnish one Who is not Well-intentioned with an opportunity to evade his proper responsibility.
" The Committee has concluded that a legislative requirement that reports of the Commissioner be public documents, in the sense that they would be available for general inspection as soon as rendered, would tend to hamper unduly the proper functioning of his Department. In many cases, it appears that inefficiency could be corrected by proper action by the Mayor Without th’e loss of morale in the affected department which Would inevitably follow publication. Moreover, it might well be that erroneous, trivial, or incompletely explored information might be unfairly exploited by political opponents.
“ The Committee is also persuaded that it would be unrealistic to- require that all reports' to- the Mayor or reports to the' Commissioner from within his Department be in writing.”
Seidman in a book entitled “ Investigating Municipal Administration ” (1941) points out at pages 30, 93 and 123 that for a limited period prior to 1938, the City Charter provided that reports of investigations be submitted to the board of aldermen as well as to the' Mayor (Greater New York Charter, § 119). This was interpreted as having the effect of making- reports of the commissioner public documents. In preparing the earlier drafts of chapter 34 of the 1938 Charter, concerning the department of investigation, the charter revision commission at first carried forward the requirement of section 119 of the Greater New York Charter that reports of the commissioner of accounts should be submitted to the board of aldermen as well as to the Mayor (Documents of New York City Charter Revision Commission, 1936, vol. 9, § 9e, Columbia Law School Library, Cat. No. S. N. Y. 81, 1934-1936). The commissioner of accounts then appeared before the charter revision commission and pointed out that the requirement of the old charter that reports be presented to the board of aldermen meant, according to his understanding, that such reports had to be made public at the completion of an investigation (Minutes of Charter Revision Commission, Oct. 31, 1935, p. 5). This result was apparently thought to be undesirable by the charter revision commission when, in the preliminary draft and in the final draft of chapter 34 of the 1938 Charter, it omitted any requirement that reports be submitted either to the Mayor or to the city council. The provision
The history reveals the origin of the distinction drawn by the majority at the Appellate Division between stenographic minutes of testimony and other papers used preliminarily by the commissioner of investigation, and his “ culminating ” report to the Mayor. That distinction would not have been likely to have been suggested by the language of sections 893 or 894 of the present charter, exempting papers prepared “ for use in any investigation authorized by this charter.” In any event it is a distinction which arose before that phrase existed, created by the courts to prevent giving guilty parties advance notice to cover up their tracks. This distinction avoided disclosure to people being investigated, at least of stenographic minutes and other preliminary papers of the commissioner, notwithstanding the apparently mandatory language of section 1545 of the Greater New York Charter. It was in that context that Mr. Justice Cohn wrote as he did at Special Term in the case of Matter of Blanshard v. O’Brien (N. Y. L. J., Dec. 6, 1933, p. 2113, col. 5, supra). In those days there was no statutory proviso protecting against public disclosure any papers which had been prepared “ for use in any investigation authorized by
Any investigation by the commissioner, even including his report to the Mayor, is preliminary in a certain sense, as Justice Brbitbl stated, in that the object is to keep the Mayor informed concerning the operation of the different branches and agencies and the functioning of the personnel of the city government. The vital purpose of this officer is, and always was, to act as the Mayor’s eye. There are likely to be occasions when the public
The Mayor of New York City is vested with large executive responsibility. He is in a position where he is often called upon also to recommend legislation, municipal and State. The object in providing him with the services of a confidential officer of this kind was to help and not to embarrass him. If all of the reports of the commissioner are required to be made public, they will become insignificant in content, and the usefulness of the commissioner’s function will be likely to fail. That, at least, appears to be the theory on which the existing provisions of the charter and Administrative Code have been prepared.
If the commissioner is to be of value, his reports will tend to criticize the city administration rather than to praise it. It was evidently anticipated that such criticism would be constructive, in order that the Mayor might adopt helpful suggestions and make wise decisions on the basis of detailed facts submitted to him by the commissioner regarding delicate and unsatisfactory situations. The theory of these statutes, which we have to construe, is that this function can best be performed if the commissioner is held to be a confidential informant of the Mayor.
The broad extent of the commissioner’s powers is illustrated by the recent case of Matter of Dairymen’s League Co-op. Assn. v. Murtagh (274 App. Div. 591, affd. 299 N. Y. 634), where the commissioner was held to have been empowered to inquire into the names and addresses of all of the retail and chain store customers of a distributor of milk, the price per quart and the number of quarts sold, or rebates paid, and the books and records of this dealer had to be produced for the purposes of such investigation. Concerning all of this, and much more, the commissioner is empowered to inquire. It is no answer to say that the commissioner will be careful of what he puts into his reports. It is not his function to decide what information should
The circumstance should not be ignored that under the Subversive Conduct Law (L. 1951, ch. 233, §§ 1, 8; Civil Service Law, § 12-a), the commissioner of investigation is called upon to inquire into security risks, and that the State Civil Service Commission is said to have designated twenty-six agencies of the City of New York as security agencies performing functions vital to the defense of the United States. If the order appealed from be affirmed, then the reports of such investigations, as well as of all other types of investigation by the commissioner, receive mandatory publicity.
It is a familiar canon of construction that statutes are to be interpreted so as to fulfill policies which the Legislature evidently had in mind. Some indication of that may be found in the recently adopted amendment to the Executive Law creating the office of State Commissioner of Investigation for the purpose of reporting to the Governor. This act (L. 1953, ch. 887), as has been stated above, leaves no uncertainty that the reports of this officer to the Governor are to be disclosed only at the election of the latter. The State Commissioner, bearing the same title and following the prototype of the commissioner of investigation of New York City, is not likely to have been created in a different image in this respect.
Analogies to the legislative policy in this regard can readily be found in other fields. There is no mandatory publicity of all of the records of departments of police or of law, nor of papers prepared for the city comptroller for use in adjusting or contesting claims, nor in the case of welfare records, nor of certain other kinds of municipal records. The same is true of proceedings before grand juries, of Federal Bureau of Investigation investigations, and many income tax records. The result would be different if the commissioner of investigation were a different kind of office, that is to say, if instead of being a confidential aid to the Mayor, he were an independent public officer.
The motion by appellant to dismiss the petition under section 1293 of the Civil Practice Act should be granted.
Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.
Order reversed, etc.