88 Misc. 2d 632 | N.Y. Sup. Ct. | 1976
The State’s fundamental public disclosure statute, the Freedom of Information Law (Public Officers Law, art 6; L 1974, ch 578), contains a provision which exempts from inspection information contained in law enforcement investigatory files. When the Building Department of the Town of Huntington relied upon the exemption to deny the petitioner access to its records and was sustained by the Huntington Records Access Appeals Board, he instituted this article 78 proceeding to review the denial. The breadth of the exemption has evolved as the principal issue in the case.
The exemptive provision is section 88 (subd 7, par d) which provides that the right of access to public records under the statute shall not apply to information that is: "d. part of investigatory files compiled for law enforcement purposes.”
Although it is apparent that this language encompasses the relevant files of police and other criminal law enforcement agencies, the critical question is whether it embraces the records of other bodies as well. Indeed, under the purported aegis of section 88 (subd 7, par d), numerous departments and authorities of the State have hastened to adopt regulations shutting off public access to their investigative activities (see, e.g., 5 NYCRR 1.4 [2] [d] [Dept of Commerce]; 14 NYCRR 8.5 [d] [Dept of Mental Hygiene]; 10 NYCRR 50.2 [d] [Dept of Health]; 9 NYCRR 589.8 [Comm on Cable Tel]; 21 NYCRR 501.7 [Atomic and Space Dev Auth]; 21 NYCRR 1076.5 [c] [Triborough Bridge and Tunnel Auth]; 21 NYCRR 1053.5 [c] [New York City Tr Auth]; 21 NYCRR 107.3 [4] [New York State Thruway Auth]; 21 NYCRR 886.20 [f] [Delaware Riv Basin Comm]). If the obligation of such public agencies to
The records petitioner seeks are those which the building department compiled during its investigation of his complaint that construction work at certain town facilities was performed improperly and in violation of the town code. According to the building department director, the investigation is being conducted pursuant to his law enforcement responsibilities as town building inspector (see Town Law, § 138). Because violations of building codes and zoning ordinances enforceable by the building inspector are offenses and not crimes (see, e.g., Executive Law, §§ 385, 396; Town Law, § 268), the merit of the director’s contention that his files are immune from public inspection depends upon the scope of section 88 (subd 7, par d).
Interpretation of the section has been sparse. In Matter of Zuckerman v New York State Bd. of Parole (53 AD2d 405) the Parole Board argued, inter alia, that section 88 (subd 7, par d) protected its minutes from inspection. Declaring that it was "possible” that the minutes contained exempt information but that the exemption required a narrow construction, the court remanded the matter to nisi prius for an in camera inspection. Although Parole Board proceedings are administrative in nature (see People ex rel. Calloway v Skinner, 33 NY2d 23; People ex rel. Maggio v Casscles, 28 NY2d 415), Zuckerman is not dispositive of the breadth issue. Under section 211 of the Correction Law, the police and the District Attorney’s office may be required to furnish the Parole Board with all "existing available records” concerning each prisoner as he is received at a State corrective institution. Obviously, such records may include data from investigation files of criminal law enforcement authorities.
Apart from a brief mention of the exemption in the dissent in Matter of Sigety v Horan (50 AD2d 779) and avoidance of the breadth issue in Martinez v Libous (85 Misc 2d 186) because the records were available for inspection under another statute, the other reported section 88 (subd 7, par d) cases concern the palpably exempt files of District Attorneys (see, e.g., Matter of Dillon v Cahn, 79 Misc 2d 300) and the
It is a basic tenet of statutory construction that the intention of the Legislature must be sought in the words or language of the statute under construction (Department of Welfare of City of N. Y. v Siebel, 6 NY2d 536), and where the Legislature has used general terms and has not either expressly or by implication limited their operation, the courts will not impose a limitation (Matter of Di Brizzi [Proskauer], 303 NY 206). However, a narrower construction may be given general terms where necessary to carry out the intent of the Legislature if some reason for the limitation is found in the context or surrounding circumstances (see People v Sharp, 107 NY 427).
In this State, the term "law enforcement” generally has been employed in the context of criminal law enforcement (see, e.g., CPL 60.45, subd 2, par [b]; 240.10, subd 3; 700.05, subd 6; 710.20, subd 3; Penal Law, § 240.60; Agriculture & Markets Law, § 109; Family Ct Act, § 753-a, subd 1; Executive Law, § 70-a; Correction Law, § 621; Mental Hygiene Law, § 7.17, subd [b]; People v Ronald W, 24 NY2d 732; Albert v Zahner’s Sales Co., 81 Misc 2d 103, affd 51 AD2d 541; Matter of Special Report of Grand Jury of Erie County, 192 Misc 857; but see Social Services Law, § 3520-a, subd 1, par [d]). Nevertheless, the broad interpretation the Federal judiciary gave to an almost identical exemption in the original Federal Information Act creates a real doubt as to the meaning of the New York law. Federal decisions construing a Federal law are highly persuasive to State courts considering a similar State statute, although they are not binding (Matter of Lazarus [Corsi], 268 App Div 547, affd 294 NY 613; Matter of Bank of Richmondville v Graves, 259 App Div 4, affd 284 NY 671; People ex rel. Mosbacher v Graves, 254 App Div 438, affd 279 NY 793; Matter of Howe, 207 Misc 972, affd 286 App Div 892). Where the language of both laws is identical, the history of the Federal law and the intent of Congress have a bearing on the intent of the Legislature on the presumption that the State legislators had the same objective in mind (Matter of Walk, 192 Misc 237) and employed the statutory terms in the same sense, (see Matter of Weiden, 263 NY 107; Dupuy v McColgan, 112 Cal App 2d 237; 82 CJS, Statutes, § 371).
When the Freedom of Information Law was enacted in 1974, the existing Federal Freedom of Information Act contained an exemption for "investigatory files compiled for law enforcement purposes” (US Code, tit 5, § 552, subd [b], par [7]). Because of judicial inconsistency as to whether disclosure was required where no enforcement action was contemplated (compare Bristol-Myers Co. v Federal Trade Comm., 424 F2d 935, cert den 400 US 824, with Frankel v Securities & Exch. Comm., 460 F2d 813, cert den 409 US 889), the original language subsequently was amended (see 88 US Stat 1561-1564) and the exemption now clearly includes both types of investigatory files. Even prior to the amendment, however, the exemption was held to apply to files prepared for both civil and criminal law enforcement (see, e.g., Soucie v David, 448 F2d 1067, 1078, n 45; Clement Bros. Co. v National Labor Relations Bd., 282 F Supp 540; Barceloneta Shoe Corp. v Compton, 271 F Supp 591).
The legislative history of the Federal statute demonstrates that uncertainty existed with respect to the meaning of the exemptive language (see Comment, 1974 Wash ULQ 463; Note, 62 Geo LJ 177; Davis, The Information Act: A Preliminary Analysis, 34 U Chi L Rev 761). The Senate committee report stated that the exemption pertained to "files prepared by Government agencies to prosecute law violators” (see S Rep No. 813, 89th Cong, 1st Sess [1965]), language which could be interpreted to refer to the criminal law (Davis, supra, p 799). But the House committee reported that the exemption covered investigatory files related to the enforcement of "all kinds of laws, labor and securities laws as well as criminal laws” (HR Rep No. 1497, 89th Cong, 2d Sess [1966]) and the Federal courts apparently adopted the House construction.
New York’s history is strikingly different. A Freedom of
"The legislative intent is the great and controlling principle. Literal meanings of words are not to be adhered to or suffered to 'defeat the general purpose and manifest policy intended to be promoted’.” (Matter of New York Post Corp. v Leibowitz, 2 NY2d 677, 685; People v Ryan, 274 NY 149.) The opening section of the Freedom of Information Law (Public Officers Law, § 85) states that its intent is to provide "unimpaired” access to governmental information unthwarted "by shrouding it with the cloak of secrecy or confidentiality.” It concludes as follows: "The legislature therefore declares that government is the public’s business and that the public, individually and collectively,, and represented by a free news media, should have unimpaired access to the records of government.” In a
Generally, laws intended to provide disclosure should be liberally construed (Cuneo v Schlesinger, 484 F2d 1086, cert den sub nona. Rosen v Vaughn, 415 US 977; Matter of Burke v Yudelson, 81 Misc 2d 870, affd 51 AD2d 673) and the instant statute has been viewed as reflecting a broad policy in favor of disclosure (see, e.g., Matter of Dillon v Cahn, 79 Misc 2d 300, supra; see, also, Greenfield Constr. Co. v State of New York, 52 AD2d 734; Matter of Dwyer, 85 Misc 2d 104; Matter of Sigety v Horan, 50 AD2d 779, supra [dissenting opn]). That broad policy mandates rejection of the current respondents’ belated argument (first asserted in their law memorandum) that the files here sought are not public records under the statute.
For like reasons, exemptions in a disclosure statute should be narrowly construed to permit maximum access (cf. Zuckerman v New York State Bd. of Parole, 53 AD2d 405, supra; see Matter of Dwyer, supra; Vaughn v Rosen 484 F2d 820, cert den 415 US 977). Further evidence of legislative intent mandating narrow construction of the instant exemption is furnished by subdivision 10 of section 88 of the statute which provides that the law should not be construed to limit or abridge rights existing at the time it was enacted. This language serves not only to preserve the benefits of existing disclosure laws such as section 51 of the General Municipal Law (which the current petitioner did not opt to utilize) and others which apply to specific areas of State or local jurisdiction, but it also demonstrates that it was not the statutory scheme to replace a liberal law with a more restrictive one. The statute’s predecessor (Public Officers Law, § 66), had been
This interpretation of the statute does not, however, conclude the underlying controversy because, in its effort to preserve secrecy, the town has also asserted in its memorandum of law that its records are privileged. The common-law public interest privilege available to public agencies to prevent disclosure was not abolished by the Freedom of Information Law (see Cirale v 80 Pine St. Corp., supra). The hallmark of this privilege is its applicability when the public interest would be harmed if the material sought were to lose its cloak of confidentiality (Zuckerman v New York State Bd. of Parole, supra [citing Cirale]). It attaches to confidential communications between public officers in the performance of their duties where the public interest requires that such communications or the sources not be divulged (People v Keating, 286 App Div 150). It has been applied to protect records of ongoing investigations (see People ex rel. Woodill v Fosdick, 141 App Div 450), although, in the absence of statutory exemption, investigative records are subject to inspection (see Matter of Ihrig v
The instant respondents aver that their investigation is an ongoing one, but their papers are devoid of facts to demonstrate how the public interest will be jeopardized if inspection by the petitioner takes place. Their assertion of privilege is wholly based upon conclusory use of the terms "executive privilege” and "attorneys’ work product.” Executive privilege, as the term is generally employed, relates to matters of national security and foreign policy (see United States v Nixon, 418 US 683; US Code, tit 5, § 552, subd [b], par [1], cl [A]), and the report of an independent investigation is not an attorney’s work product subject to privilege (Montgomery Ward Co. v City of Lockport, 44 Misc 2d 923; see, also, Matter of Winston v Mangan, 72 Misc 2d 280). "The record, therefore, does not support the respondents’ claim of privilege” (Zuckerman v New York State Bd. of Parole, 53 AD2d 405, 409, supra).
The petition is granted to the extent that an inspection of the relevant files will be permitted. Settle judgment fixing time and place of examination of respondents’ files.