Foundation Files Brief For Two Venerable Non-Partisan Good Government Groups in Freedom of Information Case in New Yorks Highest Court


The Foundation filed a friend of the court brief in the New York Court of Appeals on behalf of the Citizens Budget Commission and the Citizens Union of New York City in support of a freedom of information request by the Empire Center for Public Policy in two related cases, Empire Center v. New York State Teachers Pension System and Empire Center v. Teachers Retirement System of the City of New York. Empire Center for Public Policy is an independent, non-partisan, non-profit think tank whose mission is to make New York a better place to live and work by promoting public policy reforms grounded in free-market principles, personal responsibility, and the ideals of effective and accountable government.

The cases arise out of requests for information by Empire Center, pursuant to New Yorks Freedom of Information Law, for information about retired members of the two immense public employee retirement systems: their names, last employers, cumulative years of service at retirement, gross retirement benefits, retirement dates, and membership dates. Both retirement systems refused to provide the names of their retirees, invoking Section 89(7) of New Yorks Freedom of Information Law, which provides that nothing in the law shall require the disclosure of the home address. . . of a retiree of a public employees retirement system; nor shall anything in this article require the disclosure of the name or home address of a beneficiary of a public employees retirement system, arguing that a retiree is also a beneficiary.

The lower courts in these cases held that they were constrained by an earlier decision of the Court of Appeals to find for the retirement systems. One intermediate appellate court went so far as to observed that [w]ell-settled principles of statutory construction lend support to the interpretation advanced by petitioner but that court felt bound by the earlier Court of Appeals in which the high court interpreted Section 89 (7) as exempting from disclosure both the names and home addresses of retirees of a public employees retirement system.

Atlantic Legal argues that: (1) Section 89(7) is an exception to the broad disclosure mandate of FOIL, and should be narrowly construed to promote the overarching purpose of FOIL — public access to government records and transparency and the holdings of the lower courts are manifestly contrary to the purposes of FOIL and particularly troubling given taxpayers justified concerns over the fiscal issues facing state and local government; (2) the lower courts rulings contravene principles of statutory construction, especially the principle (codified in New Yorks statute on legislative interpretation) that a law should not be construed to render legislative language superfluous when it is practicable to give to each a distinct and separate meaning and the inclusion of retirees in the second clause of Section 89(7), by reason of a strained reading of beneficiary, makes the first clause superfluous. (Moreover, the legal and plain English dictionaries defined beneficiary to mean something different from pensioner, and the retirement systems own websites and forms clearly reflect their understanding that retiree and beneficiary are distinct) ; and (3)the holdings below are inconsistent with case law precedent because in the case relied upon by the lower the FOIL request sought both names and addresses of retirees, and not as in this case just the names of retirees.

The legal issue is significant because many observers believe that the financial burden of government pensions threatens to adversely affect the economic viability of the State and City of New York and the welfare of New York citizens and taxpayers.

The Citizens Union of the City of New York is a preeminent independent, non-partisan organization dedicated to promoting good government and advancing political reform in the City and State of New York. It serves as a watchdog for the public interest and an advocate for the common good at City Hall and the State Capitol. Citizens Union was founded in 1897 by such eminent public-minded citizens as J. P. Morgan (financier and philanthropist), James A. Roosevelt (philanthropist) and Carl Schurz (U. S. Senator and Secretary of the Interior) to fight the corruption of Tammany Hall and helped to elect New York City’s first reform mayor, Seth Low, in 1901. Over the years, Citizens Union has spearheaded efforts for campaign finance reform, historic preservation, improved voting procedures, City Charter revisions, home rule for New York City, and proportional representation. Today, it works to ensure fair elections, clean campaigns, and open and effective government that is accountable to the citizens of the City of New York.

The Citizens Budget Commission, founded in 1932 by such luminaries as Nicolas Murray Butler (president of Columbia University and winner of the Nobel Peace Prize), Henry Morgenthau (Secretary of the Treasury), Vincent Astor (philanthropist) and John W. Davis (former Solicitor General of the United States, former Ambassador to Great Britain and founder of the law firm Davis, Polk & Wardwell), is a non-partisan, non-profit civic organization devoted to influencing constructive change in the finances and services of New York City and New York State governments. The purpose of CBC is to promote sound New York City and New York State budget and management practices, and thereby to enhance New York’s competitiveness as a place to live, work, and do business. CBC is an outspoken advocate for government reform and unique in that it confines its advocacy to areas on which it has conducted research. CBC is a catalyst for positive change in such areas as budget reform, government finance, education, transportation, public authority reform, health care reform, and economic competitiveness.

To view Atlantic Legal’s brief, please click here.