Labor & Employment Law

Financial investment data concerning public official's spouse subject to disclosure pursuant to the Freedom of Information Law

Financial investment data concerning public official's spouse subject to disclosure pursuant to the Freedom of Information Law
Matter of Humane Socy. of United States v Fanslau, 2008 NY Slip Op 06681, Decided on August 28, 2008, Appellate Division, Third Department

In Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, the Court of Appeals said that there is a presumption that all government and agency records are open for public inspection unless the agency seeking to prevent disclosure demonstrates "that the requested information 'falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access.'"

In this action the Humane Society sued David Fanslau, the Sullivan County Manager, and other county officials, after it was denied certain information it had demanded pursuant to FOIL [the State?s Freedom of Information Law; Public Officers Law, Article 6].

Samuel Yasgur, the Sullivan County Attorney, had determined that certain financial disclosure statements of filed by Steven Lungen, the Sullivan County District Attorney, were appropriately redacted prior to Society's inspection of the public records it had sought to review and that it was not entitled to photocopy such documents. The reasons articulated by Yasgur in support of his determination: ?disclosure of information pertaining to family members' income and/or investments would amount to an unwarranted invasion of privacy inasmuch as such information was reported in confidence and would result in economic or personal hardship.?

Supreme Court agreed and dismissed the Society?s petition.

In the appeal that followed the Appellate Division indicated that the basic issue concerned "What constitutes an unwarranted invasion of personal privacy?? Citing Matter of Beyah v Goord, 309 AD2d 1049, the court said that ?unwarranted invasion of personal privacy? is measured by what would be offensive and objectionable to a reasonable [person] of ordinary sensibilities."

Balancing the competing interests of public access and personal privacy, the Appellate Division decided that under the circumstances underlying this appeal, disclosure of the general [sic] information regarding the income and investments of Lungen's family members [here Steven Lungen's wife] outweighs any personal privacy interest.

The decision notes that the financial disclosure statements are required to be submitted to and maintained by the Sullivan County Board of Ethics and ?[i]nformation pertaining to a family member's financial interests is clearly relevant to the Board's role of investigating ethical code violations in an effort to uncover conflicts of interest involving public officials."

Here, said the court, the annual financial statement specifically states that "[t]he requirements of law relating to the reporting of financial interests are in the public interest." Accordingly, the Appellate Division concluded that ?the financial interests at issue, absent the categories of amounts and values, constitute general information that the public has a right to uncover and the disclosure of such does not amount to an unwarranted invasion of personal privacy.?

As a final matter, the court found that although the disclosure of the requested information is required under the circumstances presented here, ?the initial denial of the request was not so unreasonable as to warrant an award of counsel fees.?

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06681.htm

Full post as published by New York Public Personnel Law on September 04, 2008 (boomark / email).