In the Matter of Empire Center for New York State Policy, Appellant,v.New York State Teachers' Retirement System, Respondent.BriefN.Y.March 26, 2014To be Argued by: ALIA L. SMITH (Time Requested: 15 Minutes) Court of Appeals of the State of New York Albany County Clerk’s Index No. 1221/12 In re Application of EMPIRE CENTER FOR NEW YORK STATE POLICY, Petitioner-Appellant, For a Judgment under Article 78 of the Civil Practice Law and Rules – against – NEW YORK STATE TEACHERS’ RETIREMENT SYSTEM, Respondent-Respondent. –––––––––––––––––––––––––––––– New York County Clerk’s Index No. 102055/12 In re Application of EMPIRE CENTER FOR NEW YORK STATE POLICY, Petitioner-Appellant, For a Judgment under Article 78 of the Civil Practice Law and Rules – against – TEACHERS’ RETIREMENT SYSTEM OF THE CITY OF NEW YORK, Respondent-Respondent. REPLY BRIEF FOR PETITIONER-APPELLANT DAVID A. SCHULZ ALIA L. SMITH LEVINE SULLIVAN KOCH & SCHULZ, LLP Attorneys for Petitioner-Appellant 321 West 44th Street, Suite 1000 New York, New York 10036 Tel.: (212) 850-6100 Fax: (212) 850-6299 Date Completed: October 28, 2013 APL-2013-00167 i TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ............................................................................... 1 ARGUMENT ............................................................................................................. 2 I. SECTION 89(7) DOES NOT PERMIT THE NAMES OF RETIRED GOVERNMENT WORKERS DRAWING PUBLIC PENSIONS TO BE KEPT SECRET ............................................... 2 A. The Ordinary Meanings of the Terms “Beneficiary” and “Retiree” Apply Here ..................................................................... 3 1. Definitions in unrelated statutes do not replace the common meaning of the terms used in Section 89(7) ............................... 4 2. Respondents’ proposed reading of Section 89(7) violates principles of statutory construction ............................................. 8 3. Respondents’ proposed reading of Section 89(7) is not supported by its legislative history ............................................. 9 4. Respondents’ proposed reading of Section 89(7) undermines the public oversight objective of FOIL ..................................... 11 B. Veteran Police Did Not Decide The Issue Here ................................. 13 II. DISCLOSURE OF RETIREE NAMES DOES NOT CONSTITUTE AN UNWARRANTED INVASION OF PRIVACY .................................... 15 CONCLUSION ........................................................................................................ 19 ii TABLE OF AUTHORITIES Page(s) Cases Capital Newspapers v. Burns, 67 N.Y.2d 562 (1986) ......................................................................................... 12 Capital Newspapers v. Whalen, 69 N.Y.2d 246 (1987) ........................................................................................... 5 Castillo v. 711 Grp., Inc., 10 N.Y.3d 735 (2008) ........................................................................................... 8 Data Tree, LLC v. Romaine, 9 N.Y.3d 454 (2007) ........................................................................................... 14 Dunne v. Kelly, 95 A.D.3d 563 (1st Dep’t 2012) ....................................................................... 6, 7 Encore Coll. Bookstores, Inc. v. Auxiliary Serv. Corp., 87 N.Y.2d 410 (1995) ......................................................................................... 12 Fink v. Lefkowitz, 47 N.Y.2d 567 (1979) ......................................................................................... 12 Gould v. NYC Police Dep’t, 89 N.Y.2d 267 (1996) ........................................................................................... 8 Long v. Office of Personnel Mgmt., 692 F.3d 185 (2d Cir. 2012) ............................................................................... 16 Majewski v. Broadalbin–Perth Cent. Sch. Dist., 91 N.Y.2d 577 (1998) ........................................................................................... 9 Nat’l Ass’n of Retired Fed. Employees v. Horner, 879 F.2d 873 (D.C. Cir. 1989) ............................................................................ 16 N.Y. State United Teachers v. Brighter Choice Charter Sch., 15 N.Y.3d 560 (2010) ................................................................................... 18, 19 N.Y. Teachers’ Pension Ass’n, Inc. v. Teachers Ret. Sys., 71 A.D.2d 250 (1st Dep’t 1979) ......................................................................... 10 iii N. Y. Times Co. v. City of N.Y. Fire Dep’t, 4 N.Y.3d 477 (2005) ........................................................................................... 18 N.Y. Veteran Police Ass’n v. NYC Police Dep’t Art. I Pension Fund, 92 A.D.2d 772 (1st Dep’t 1983) (Murphy, J., dissenting) .................................. 13 N.Y. Veteran Police Ass’n v. NYC Police Dep’t Art. I Pension Fund, 61 N.Y.2d 659 (1983) ..................................................................................passim Newsday, Inc. v. Empire State Dev. Corp., 98 N.Y.2d 359 (2002) ........................................................................................... 8 Perez v. City Univ. of N.Y., 5 N.Y.3d 522 (2005) ............................................................................................. 5 Roberts v. Tishman Speyer Props., L.P., 13 N.Y.3d 270 (2009) ........................................................................................... 9 Russo v. Nassau Cnty. Cmty. Coll., 81 N.Y.2d 690 (1993) ........................................................................................... 5 Schenectady Cnty. Soc’y for Prevention of Cruelty to Animals, Inc. v. Mills, 18 N.Y.3d 42 (2011) ..................................................................................... 13, 14 Wash. Post Co. v. N.Y. State Ins. Dep’t, 61 N.Y.2d 557 (1984) ........................................................................................... 9 Xerox Corp. v. Town of Webster, 65 N.Y.2d 131 (1985) ......................................................................................... 14 Statutes & Other Authorities Comm. on Open Gov’t Opinion FOIL-AO-7717 .............................................. 14, 15 Comm. on Open Gov’t Opinion FOIL-AO-17955 .................................................. 15 N.Y. Pub. Off. Law § 84 .......................................................................................... 12 N.Y. Pub. Off. Law § 89(2) .................................................................................... 18 N.Y. Pub. Off. Law § 89(7) .............................................................................passim iv N.Y. Ret. & Social Sec. Law § 2 .............................................................................. 5 N.Y. Ret. & Social Sec. Law § 60 ............................................................................ 6 N.Y. Ret. & Social Sec. Law § 77 ............................................................................ 6 N.Y. Ret. & Social Sec. Law § 162 .......................................................................... 6 N.Y. Ret. & Social Sec. Law § 390 .......................................................................... 6 N.Y. Stat. § 94 ............................................................................................................ 8 N.Y.C. Code § 13-101 ............................................................................................... 6 N.Y.C. Code § 13-151 ............................................................................................... 6 N.Y.C. Code § 13-252 ............................................................................................... 6 PRELIMINARY STATEMENT The opposition briefs submitted by Respondents New York State Teachers’ Retirement System (“NYS-TRS”) and Teachers’ Retirement System of the City of New York (“NYC-TRS”) only confirm that Respondents’ revised interpretation of Section 89(7) of the Freedom of Information Law (“Section 89(7)”) cannot withstand scrutiny. Neither Respondent provides any real answer to the demonstration by Appellant-Petitioner Empire Center for Public Policy (“Empire”) that their new interpretation of Section 89(7) is contrary to the plain meaning of statute’s language and undermines FOIL’s core purpose. See Empire at 9-21.1 Respondents do not deny the uniform understanding and consistent application of Section 89(7) over the three decades since its enactment, but attempt to justify their about-face refusal to apply its plain meaning by pointing to technical definitions written into other statutes for other purposes and to a 30-year- old court decision that is not on point. Their arguments violate basic principles of statutory construction, rely on inapposite authority, and invoke far-fetched theories about possible legislative motives with no basis in the drafting history. Respondents’ new reading of Section 89(7) lacks any support in the language, structure, purpose or history of the statue itself, and is plainly incorrect. 1 Empire’s opening brief is cited herein as “Empire at __.” The opposition brief of NYS-TRS is cited as “NYS at __” and that of NYC-TRS is cited as “NYC at __.” 2 Respondent NYC-TRS does no better in defending its alternative theory that retiree names may be kept secret under FOIL’s privacy exemption. NYC-TRS does not come close to establishing, as it must, that former government employees have a significant privacy interest surrounding their participation in a taxpayer- funded pension system, and that any such privacy interest outweighs the substantial public interest in disclosure. As demonstrated by Empire, disclosure of the names of those drawing public pensions is needed for meaningful public oversight of government pension plans—to monitor effectively how they are functioning, to assess the impact of potential reforms, and to root out fraud and abuse. See Empire at 22-30. The names requested by Empire may not properly be withheld under any FOIL exemption. ARGUMENT I. SECTION 89(7) DOES NOT PERMIT THE NAMES OF RETIRED GOVERNMENT WORKERS DRAWING PUBLIC PENSIONS TO BE KEPT SECRET Respondents’ opposition briefs do not seriously dispute that: FOIL’s disclosure obligations must be applied broadly and its exemptions construed narrowly to promote maximum transparency of government activity (Empire at 15-16); Respondents and other agencies until now have narrowly read Section 89(7), consistent with the plain meaning of its terms, to authorize only addresses of retirees to be withheld, and not their names (id. at 12-13); This uniform understanding of Section 89(7) did not change after this Court’s decision thirty years ago in New York Veteran Police 3 Association v. New York City Police Department Art.1 Pension Fund, 61 N.Y.2d 659 (1983) (“Veteran Police”), which was not understood to accord Section 89(7) any different meaning (Empire at 12-15); Respondents’ new reading of Section 89(7) frustrates public oversight of multi-billion dollar public pension systems in significant ways and thwarts discovery of fraud and abuse—undermining the very legislative objectives of FOIL (id. at 17-21). That these points are not seriously challenged by Respondents simply underscores the clear error in their new interpretation of Section 89(7). The strained arguments that are advanced by Respondents do nothing to dispel this conclusion. A. The Ordinary Meanings of the Terms “Beneficiary” and “Retiree” Apply Here Respondents argue that the ordinary meaning of the undefined terms used in Section 89(7) can be ignored because their new interpretation applies the term “beneficiary” in a manner “consistent with” a technical definition provided in other laws. See NYS at 7-10; NYC at 24-28. But their argument overlooks the Legislature’s widespread use of that same term in its ordinary meaning in those same statutes, the absence of any drafting history suggesting that a technical meaning—and the bizarre distinction it would produce—was intended in Section 89(7), the violation of fundamental rules of statutory construction required to avoid the ordinary meaning of Section 89(7), the consistent understanding of Section89(7) since its enactment, and the violence done to FOIL’s prime objectives if an atypical definition is read into Section 89(7). Respondents’ position is 4 meritless, and their effort to rewrite the law by administrative fiat should flatly be rejected. 1. Definitions in unrelated statutes do not replace the common meaning of the terms used in Section 89(7). NYC-TRS and NYS-TRS do not deny that their new interpretation of Section 89(7) rejects the ordinary meaning of the term “beneficiary” as referring to one who receives benefits in the event of death—the very meaning and use of the term reflected on Respondents’ own websites. See Empire at 9-12. Instead, Respondents argue that they should be allowed to reject the plain meaning of the undefined term in Section 89(7) because “beneficiaries” has been technically defined in some other statutes specifically to include “retirees.” NYS at 8; NYC at 24-26. The argument mistakenly seeks to import a technical definition imposed in other statutes to achieve specific ends, where the Legislature itself did not do so in Section 89(7), and ignores the Legislature’s actual use of the terms “beneficiary” and “retiree” to distinguish separate groups in those other statutes, to boot. Respondents cite various provisions of the New York City Administrative Code and the New York State Retirement and Social Security Law (“RSSL”) that broadly define “beneficiary” as someone who receives “a pension, annuity, or retirement benefit” (NYC at 25; NYS at 8 (citing similar definitions)), and argue that this definition “is not limited . . . to only the retirees’ named beneficiaries.” See NYC at 25; NYS at 8 (citing similar definitions and making similar argument). 5 But the technical definitions provided in those complex regulatory statutes do not control the interpretation of the terms used in FOIL, and may not properly be imposed to render Section 89(7) internally inconsistent and to expand the scope of this exemption in a manner that undermines FOIL’s undisputed purpose. See Empire at 9-12, 15-21 (citing cases). The RSSL and FOIL do not reference each other, were not drafted at the same time, and appear in completely separate sections of the New York Code.2 Because FOIL itself contains no definition of “beneficiary” or “retiree,” those terms are properly construed according to their ordinary meaning in a manner that does not render any part of the legislative language redundant or superfluous. See Empire at 11-12 (citing cases). It is also well-settled that FOIL exemptions such as Section 89(7) are to be narrowly construed to ensure “that the public is granted maximum access to the records of government” as FOIL intends. Capital Newspapers v. Whalen, 69 N.Y.2d 246, 252 (1987); accord, e.g., Perez v. City Univ. of N.Y., 5 N.Y.3d 522, 528 (2005); Russo v. Nassau Cnty. Cmty. Coll. 81 N.Y.2d 690, 697-98 (1993). The terms and structure of Section 89(7), and FOIL’s 2 Section 89(7) of FOIL was enacted in 1983 and is part of the “Public Officer’s Law” section of the New York Code. The Retirement and Social Security Law is a whole section of the Code unto itself. It is derived from the Civil Service Law of 1909 and has been through many iterations and amendments since then, although not in 1983. See Annotations to RSSL § 2 (definitions). 6 goal of maximizing disclosure, all make clear that this statute uses the term “beneficiary” in its ordinary sense, and treats beneficiaries distinct from retirees. Even if it were appropriate to consider definitions provided in unrelated laws, the laws cited by Respondents do not advance their cause. Despite the RSSL’s formal definition of the term “beneficiary” to include a “retiree,” the RSSL repeatedly uses the term “beneficiary” in its common sense as one entitled to receive benefits in the event of a retiree’s death. See, e.g., RSSL § 60 (“ordinary death benefit . . . shall be payable to the beneficiary . . . , if a retired member shall die”); id. § 77 (explaining procedures for designating a “beneficiary” to receive a member’s benefits in the event of death); id. § 162 (referring to “widow[s], dependent children and dependent parents of a deceased member or deceased retired member of the uniformed force of a police department or a fire department” as “beneficiaries”); id. § 390 (where a “member” has “designated a beneficiary,” his benefits “shall be paid to such beneficiary”). The same ordinary meaning of the term “beneficiary” is likewise used in the New York City Administrative Code. See, e.g., NYC Code § 13-252.1 (referring to a “retiree’s eligible beneficiary”); § 13-101 (referring to a “designated beneficiary”); § 13-151 (noting that “beneficiary” is the one who receives payment in the event of a member’s death). This distinct understanding of the two terms is equally reflected in case law construing the retirement statutes, e.g., Dunne v. Kelly, 95 A.D.3d 563, 564 (1st 7 Dep’t 2012) (distinguishing between a “retiree” and his or her “beneficiary”), and on Respondents’ own websites explaining the statutes. See Empire at 12 & n.5 (NYS-TRS and NYC-TRS websites use “retiree” to refer to all retired persons and “beneficiary” to refer to those entitled to receive benefits in the event of death). NYS-TRS strains to portray its website as supporting its broad interpretation of “beneficiary” because the website refers in one place to “beneficiaries of the deceased,” whereas Section 89(7) does not contain the phrase “of the deceased.” NYS at 10-11. But, the glossary of NYS-TRS’s website unambiguously defines “beneficiary” in the ordinary sense: Beneficiary refers to a) a person whom a member has designated to receive a benefit that may be due when the member dies, or b) a person who is already receiving such a benefit. Glossary of Benefit Terms at http://www.nystrs.org/main/glossary.html. A simple review of the website makes clear that when NYS-TRS refers to “beneficiaries,” this is what it means. NYC-TRS is equally off-base in attempting to dismiss the use of the term “beneficiary” on its own website as reflecting “the colloquial, non-technical sense set out in general dictionaries.” NYC at 27. This is precisely the point. The common meaning of “beneficiary” is distinct from “retiree,” and that is how NYC- TRS uses the terms on its website. The same is true of Section 89(7). 8 2. Respondents’ proposed reading of Section 89(7) violates principles of statutory construction. Even if there were more than one definition of “beneficiary” to apply, principles of statutory construction require use of the definition in Section 89(7) that (a) accords undefined terms their ordinary meaning, (b) does not render the statute internally inconsistent, and (c) construes the FOIL exemption narrowly to maximize disclosure and promote FOIL’s government oversight objective. See Empire at 9-10; Gould v. NYC Police Dep’t, 89 N.Y.2d 267, 275 (1996) (FOIL exemptions to be “narrowly construed”); Newsday, Inc. v. Empire State Dev. Corp., 98 N.Y.2d 359, 361-62 (2002) (FOIL disclosure obligations to be given “expansive” interpretation). Respondent’s proposed re-interpretation violates each of these principles. As noted, it is black letter law that in the absence of an express definition of “beneficiary” in Section 89(7), it is the “ordinary” or “colloquial” definition that applies. See Empire at 11; see also N.Y. Stat. § 94 (“statutory language is generally construed according to its natural and most obvious sense”); Castillo v. 711 Grp., Inc., 10 N.Y.3d 735, 736-37 (2008) (“‘[w]ords in a statute are to be given their plain meaning without resort to forced or unnatural interpretations’”) (citation omitted). Respondents reject this meaning. NYS-TRS, alone, defends its approach as not creating an inconsistency in Section 89(7) if the term “retirees” is read to refer only to a small class of persons 9 retired from government who are not yet drawing their retirement benefits, and thus distinct from “beneficiaries.” NYS at 8-9. It thus rejects the common meaning for both terms without identifying any support for this novel distinction in the legislative history of the statute, the purpose behind the exemption, or public policy generally. Its proposed construction may avoid inconsistency, but it makes no sense in context, and provides no basis to reject the plain meaning of the statutory language used by the Legislature. 3. Respondents’ proposed reading of Section 89(7) is not supported by its legislative history. Respondents contend that the legislative history of Section 89(7) reveals an implicit intent for its terms “retiree” and “beneficiary” to mean the same thing. See NYS at 15-16; NYC at 17-21. It does not. Even if it were proper to look to legislative history to construe clear statutory language,3 Respondents simply cite materials from the legislative process that make the same distinction between an “employee or retiree” (whose names must be disclosed) and a “beneficiary” (whose name may be withheld) as the Bill itself. E.g., NYC at 18 (citing Bill Jacket at 00010 (A50)); NYS at 16; NYC at 18-19 (citing Bill Jacket at 000007 3 “When the plain language of the statute is precise and unambiguous, it is determinative.” Wash. Post Co. v. N.Y. State Ins. Dep’t, 61 N.Y.2d 557, 565 (1984). See also, e.g., Majewski v. Broadalbin–Perth Cent. Sch. Dist., 91 N.Y.2d 577, 583 (1998) (“the clearest indicator of legislative intent is the statutory text”); Roberts v. Tishman Speyer Props., L.P., 13 N.Y.3d 270, 286 (2009) (same). 10 (A47)).4 The history put forward by Respondents does not reveal any legislative use of “beneficiary” and “retiree” as interchangeable synonyms; the opposite is true. See Empire at 10-11 (drafters repeatedly used the two terms distinctly). Respondents’ explanation that the Legislature intended Section 89(7) to overturn the decision in New York Teachers’ Pension Association, Inc. v. Teachers Retirement System, 71 A.D.2d 250 (1st Dep’t 1979), equally misses the mark. See NYS at 16-17; NYC at 19-21. The FOIL request in that case, like the request in Veteran Police (see Empire at 13-15 and infra at 13-15), sought both the names and home addresses of participants in the retirement system for purposes of solicitation, an issue not present here. The bits of legislative history cited by Respondents are entirely consistent with a legislative intent to make the very distinction that is made explicitly by the ordinary meaning of terms in the statue itself. The Legislature used the phrase “retiree of a public employee’s retirement system” when permitting addresses to be withheld under FOIL, and separately used the phrase “beneficiary of a public 4 NYC-TRS cites one memo from the Governor’s Office of Employee Relations describing the bill as amending FOIL “with respect to the disclosure of names and home addresses of certain public officers and employees, and participants and beneficiaries of the public employees retirement system.” NYC at 18 (citing Bill Jacket at 000013 (A53)). This overly-general description of the provision has limited value since the same memo mistakenly says the names of current officers and employees would be exempt from disclosure under the bill. That obviously was not the case. 11 employees’ retirement system” when permitting both names and addresses to be withheld. It clearly did not intend these to mean the same thing.5 4. Respondents’ proposed reading of Section 89(7) undermines the public oversight objective of FOIL. Respondents have no better response to Empire’s demonstration that their revised reading seriously undermines FOIL’s objectives. See Empire at 15-21. NYS-TRS acknowledges that its new interpretation restricts the information available to the public, but argues that it nevertheless “respects the general purposes of FOIL.” NYS at 13. Without denying the significant adverse impacts established by Empire, it suggests—without explanation—that the incomplete information now made available provides sufficient “openness” for the press and public to perform their “watchdog” role, and dismisses the increased difficulty in detecting fraud and waste because that is a function “primarily entrusted to public officials rather than private actors.” NYS at 14. These rationalizations only serve to underscore the basic point: the refusal to disclose names does impede academic scrutiny, public understanding and democratic oversight of state pension systems. 5 NYC-TRS’s argument that “the Legislature intended to distinguish between active and retired officers and employees, by permitting the disclosure of the names (but not the addresses) of active officers and employees, but protecting both the names and addresses of retired officers and employees” (NYC at 24) is divorced entirely from this statutory language and makes no sense. Section 89(7) states that only the “home address” of “retirees” may be withheld. 12 Indeed, the suggestion that a FOIL exemption can be construed broadly because the government itself can root out fraud and waste fails completely to appreciate FOIL’s purpose and objectives. As this Court has explained, FOIL is meant to provide, among other things, “an effective tool” to enable “citizens” to expose “waste, negligence, and abuse on the part of government officers.” Capital Newspapers v. Burns, 67 N.Y.2d 562, 566 (1986); accord Encore Coll. Bookstores, Inc. v. Auxiliary Serv. Corp., 87 N.Y.2d 410, 416 (1995). See also, e.g., FOIL § 84 (“the more open a government is with its citizenry, the greater the understanding and participation of the public in government”). Respondents also fail to appreciate the adverse impact on academic analysis and long-term studies of pension plans, and the restriction of meaningful public debate, caused by their withdrawal of information. See Empire at 18-20. FOIL “proceeds under the premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government.” Fink v. Lefkowitz, 47 N.Y.2d 567, 571 (1979); Burns, 67 N.Y.2d at 565 (emphasizing a “strong commitment to open government and public accountability”). Respondents utterly fail to justify their revisionist interpretation of Section 89(7), which is plainly incorrect as a matter of law. 13 B. Veteran Police Did Not Decide The Issue Here Respondents are equally off base in arguing that the Veteran Police decision requires a tortured interpretation of Section 89(7). That case did not even purport to address the issue here. See Empire at 13-15. Respondents reject Empire’s understanding of Veteran Police, even though that same understanding was universally applied by state agencies for more than two decades. They argue that the Veteran Police Court implicitly decided the issue here because it “could have directed respondent to disclose the names, but not addresses, of its retirees,” and did not do so. NYS at 12; NYC at 31 (emphasis added). Their response ignores altogether Empire’s demonstration that the petitioner in Veteran Police never sought to obtain the names of retirees without addresses (Empire at 14-15), and nothing in the record of that case or the Court’s opinion suggests that the issue presented here was considered or addressed.6 Nor are Respondents aided by their citation to Schenectady County Society for Prevention of Cruelty to Animals, Inc. v. Mills, 18 N.Y.3d 42, 46 (2011) 6 NYC-TRS notes that Justice Murphy’s dissent in the First Department expressed concerns about “the release of both the names and addresses,” NYC at 16 (emphasis in original), but this only confirms Empire’s point: Justice Murphy’s privacy concerns related to the disclosure of names with addresses; the dissent nowhere considers privacy concerns arising from the disclosure of names alone. See NY Veteran Police Ass’n v. NYC Police Dep’t Art. I Pension Fund, 92 A.D.2d 772, 774 (1st Dep’t 1983) (Murphy, J., dissenting) (“there is no necessity to maintain or supply the private address of a public employee” or retiree) (emphasis added). 14 (requiring redaction rather than wholesale denial of request, if possible) and Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 464 (2007) (same). See NYS at 12; NYC at 31. These cases were decided more than 20 years after Veteran Police, and nothing suggests that requiring redaction was a common practice the Court would have turned to sua sponte in 1983, when FOIL was still a young statute. Indeed, no decision of this Court appears to have mentioned the possibility of “redaction” until 1985, in Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133 (1985), and the redaction requirement did not become fully explicit until 2011 in Schenectady County Society for Prevention of Cruelty to Animals, Inc. v. Mills, supra. That Veteran Police did not address, let alone decide, that Section 89(7) permits agencies to withhold the names of retirees is underscored by the consistent practice of agencies after that decision to release retiree names. It is also confirmed by the repeated opinions of the Committee on Open Government after Veteran Police instructing that FOIL requires disclosure of the names of retirees drawing public pensions.7 NYC-TRS wrongly contends that “nothing in the [COOG’s] advisory opinions” suggests that the terms “beneficiary” and “retiree” “cannot be coterminous.” NYC at 30. The opinions expressly state just that. 7 NYS-TRS notes that two of four COOG opinions cited by Empire considered whether retiree names may be released under the privacy exemption and do not explicitly mention Section 89(7). NYS at 10. But the Committee on Open Government would not advise that retiree names must be released under the privacy exemption if it believed that they could be withheld under Section 89(7). 15 Opinion FOIL-AO-7717 states that under Section 89(7) “the name of a retiree is not the same as the name of the person designated by a retiree as a beneficiary,” and “the names of retirees must be disclosed.” Opinion FOIL-AO-17955 concludes that “a beneficiary [as distinct from a retiree] is a person designated by a public employee to receive pension benefits in the event of the employee’s death.” * * * * * * In short, Respondents’ opposition briefs fail to establish any basis to deviate from the plain and ordinary meaning of Section 89(7), to alter the uniform understanding of its provisions that had been consistently applied for nearly three decades, or to construe the provision in a manner so plainly inconsistent with FOIL’s goal of facilitating public oversight of government agencies.8 II. DISCLOSURE OF RETIREE NAMES DOES NOT CONSTITUTE AN UNWARRANTED INVASION OF PRIVACY NYC-TRS argues alternatively that pensioner names may be withheld under FOIL’s privacy exemption in Section 87(2)(b). NYC-TRS does not dispute that this exemption applies only if it can demonstrate a significant privacy interest in the names of its retirees and that this privacy interest outweighs the public interest 8 Respondents argue that any error in their interpretation of Section 89(7) should be left to the Legislature to correct, and not decided by the Court. See NYS at 17; NYC at 14. This request abrogates the role of the courts in enforcing the law, and would sanction State agencies to amend legislation administratively. 16 in disclosure. See Empire at 22-23. Yet, NYC-TRS barely even attempts to make these necessary showings. The only privacy interest in a retiree’s name that NYC-TRS arguably identifies is an interest in avoiding “harassment” (NYC at 35), but NYC-TRS fails to meet its burden of demonstrating that the concern about harassment is legitimate and non-speculative—that its retirees face a significant threat of harassment if their names are disclosed. See Empire at 25-26. Names of retirees were routinely made available for decades, and NYC-TRS has not identified any evidence whatsoever that this disclosure led to any harassment at all. Nor does NYC-TRS deny that its retirees’ names are otherwise available to someone bent on harassment, in historical copies of the New York Civil List and elsewhere. See id.9 NYC-TRS likewise fails to show that any actual privacy interest outweighs the public interest in disclosure. Indeed, it does not even attempt to dispute the 9 NYC-TRS cites two inapposite federal opinions. See NYC at 35-36. Long v. Office of Personnel Mgmt., 692 F.3d 185 (2d Cir. 2012), actually rejects the position advanced by NYC-TRS, holding that safety concerns justified withholding the names of certain employees engaged in “sensitive occupations,” but denying that disclosure of an employee’s name “‘always present[s] a significant threat to an individual’s privacy interest.’” Id. at 192-93 (citation omitted). In National Association of Retired Federal Employees v. Horner, 879 F.2d 873 (D.C. Cir. 1989), the requestor sought “names and addresses” of retirees (unconnected to any data about public spending) for purposes of solicitation. The interest of a public employee in avoiding solicitation prevailed in that case because there was no public interest in disclosure at all. Id. at 879. Here, the same privacy interest does not exist in names alone, and any interest is overwhelmed by the demonstrated public interest in disclosure. See Empire at 25-27. 17 substantial public interest in disclosure established by Empire. Given the need for the names to monitor the pension systems and prevent fraud and abuse, disclosure is not an “unwarranted” invasion of any privacy interest that might exist. See Empire at 26-28. Nor does NYC-TRS have any meaningful answer to the myriad precedent establishing that FOIL’s privacy exemption does not apply here. See Empire at 26- 27. NYC-TRS simply dismisses it all as involving the names of “current public employees, not retirees,” who, in its view, have a greater interest in avoiding “harassment” than do active public employees.10 NYC at 36-37. This response ignores the multiple COOG opinions addressing specifically the privacy interests of retirees. It also mischaracterizes the many cited cases that required disclosure of the names of private persons receiving government benefits, such as veterinarians, physicians, and applicants for public housing. NYC-TRS offers no explanation why retirees who draw public pensions have a greater privacy interest in their names than private citizens receiving other kinds of public benefits. NYC-TRS further errs in its citation to authority supposedly supporting its invocation of the privacy exemption. It argues that because the statements of those 10 NYC-TRS fails to explain why retirees have a greater interest in protection from harassment than current employees. It claims the reason was “articulated in support of the enactment of [FOIL] § 89(7)” (NYC at 37), but Section 89(7) does not treat retirees differently from current employees—only the addresses of each may be withheld. 18 who called 911 on September 11, 2001, were exempt from disclosure in New York Times Co. v. City of New York Fire Department (“N.Y. Times”), 4 N.Y.3d 477 (2005), the names of retirees drawing public pensions must be exempt too. See NYC at 33. As already explained (Empire at 29), this makes no sense. In N.Y. Times, this Court held that statements by public employees on the 911 calls had to be disclosed; it was only the statements of the callers that could be redacted. For the same reason that disclosing the statements of public employees presented no significant privacy interest in N.Y. Times, disclosing the names of retired public employees drawing taxpayer-funded pensions presents no significant privacy interest here. NYC-TRS gains no more support from New York State United Teachers v. Brighter Choice Charter School, 15 N.Y.3d 560, 564 (2010) (“NYSUT”). See NYC at 34. That case involved a union request seeking the names of charter school teachers for solicitation and fundraising purposes. This Court found the names exempt from disclosure under the fundraising prong of the privacy exemption, which expressly exempts disclosure of names and addresses that are to be used “for commercial or fundraising purposes.” FOIL § 89(2)(b)(iii). The fundraising exemption has no application here. The Court also noted that disclosure of the names sought by the teachers union in NYSUT would serve “no governmental purpose” and “would do nothing to further the policies of FOIL.” 15 N.Y.3d at 565. The opposite is true here. NYSUThas no relevance to Empire's request. NYC-TRS has failed to make any ofthe factual showings required to invoke the privacy exemption, and that exemption plainly does not apply. CONCLUSION For the foregoing reasons, and for the reasons stated in Empire's opening brief, this Court should reverse the decisions below and direct Respondents to disclose to the names of individuals receiving tax-payer funded pensions. Dated: New York, New York October 25,2013 Respectfully submitted, LEVINE SULLIVAN KOCH & SCHULZ, LLP If/b.-! SmulL-- David A. Schulz Alia L. Smith 321 West 44th Street, Suite 1000 New York, NY 10036 (212) 850-6100; (212) 850-6299 (fax) Attorneys for Petitioner-Appellant 19