State agency must turn over records, N.Y. high court rules

By The Associated Press

06.15.02

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ALBANY, N.Y. — A state agency must turn over copies of any subpoenas its top officers received to a newspaper seeking the documents under the Freedom of Information Law, the state's highest court has ruled.

The Court of Appeals said in a unanimous decision June 13 that contrary to the claims of the Empire State Development Corp., the subpoenas are not shielded from disclosure by exemptions in the Freedom of Information Law — or FOIL.

The Long Island newspaper Newsday filed its FOIL request in November 1999, seeking copies of subpoenas issued to agency officials by Manhattan District Attorney Robert Morgenthau in the previous 18 months.

The request included subpoenas that may have been issued to the head of the economic development agency, Charles Gargano. Gargano is a close friend of Gov. George Pataki.

The agency denied the request, calling subpoenas court documents and noting that court materials are not subject to FOIL disclosure. After a trial-level court rejected that reasoning, the midlevel Appellate Division of state Supreme Court backed the state agency's denial of access to the information.

"We disagree," the Court of Appeals said June 13 in a decision by Judge Howard Levine.

"ESDC is not part of the judiciary. It does not claim to have been acting on behalf of the judiciary within a judicial process. ... It is a governmental entity subject to FOIL and must disclose the subpoenas in its possession, irrespective of whether they are deemed to have been a mandate of a court and issued for a court," Levine wrote.

A literal reading of the FOIL statute makes it clear the agency must turn over the information, Levine said. Empire State Development is a government agency under the meaning of the law, and the subpoenas constitute "information ... in physical form," the court found.

Newsday Editor Tony Marro said the paper is "very happy" about the decision.

"It's a clarification of what we have believed all along to be an obvious point of law," said Newsday's counsel in the case, Stephanie Abrutyn. "We're thrilled that the Court of Appeals ruled in our favor and ordered that the documents be disclosed."

Michael Marr, a spokesman for Empire State Development, said that while the agency disagreed with the ruling it would comply with it.

"It is important to note that the investigation (that Newsday was interested in) has been dropped by the district attorney's office without any finding or action taken against any employee of ESD," Marr said.

In general, the Court of Appeals has been "terrific" at upholding the Freedom of Information Law and forcing state and local government agencies to comply with it, said the head of the state's Committee on Open Government, Robert Freeman.

"I think the decision is completely consistent with precedent and is based very simply on the clear language of the law," Freeman said.

Newsday's position in the case was supported by a friend-of-the-court brief filed by the Associated Press, the New York Daily News, The New York Times, Investigative Reporters and Editors and the Reporters Committee for Freedom of the Press.