In the Matter of Empire Center for New York State Policy, Appellant,v.New York State Teachers' Retirement System, Respondent.

Brief

N.Y.March 26, 2014

To be argued by: Jeffrey W. Lang Time Requested: 15 minutes Court of ppeaW of the state of AJ3etu orft IN THE MATTER OF THE APPLICATION OF EMPIRE CENTER FOR NEW YORK STATE POLICY, Petitioner-Appellant, -AGAINST- NEW YORK STATE TEACHERS’ RETIREMENT SYSTEM, Respondent-Respondent BRIEF FOR RESPONDENT ERIC T. SCHNEIDERMAN Attorney General of the State of New York BARBARA 0. UNDERWOOD Attorney for Respondent Solicitor General The Capitol ANDREW D. BING Albany, New York 12224 Deputy Solicitor General (518) 474-1394 (telephone) JEFFREY W. LANG (518) 473-8963 (facsimile) Assistant Solicitor General of Counsel Dated: October 8, 2013 Reproduced on Recycled Paper TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT 1 QUESTION PRESENTED 2 PROCEEDINGS BELOW 3 ARGUMENT SECTION 89(7) EXEMPTS THE REQUESTED NAMES FROM FOIL DISCLOSURE 5 POINT I RESPONDENT’S INTERPRETATION OF SECTION 89(7) EFFECTUATES ITS PLAIN MEANING 7 POINT II THIS COURT’S DECISION IN VETERAN POLICE ASSOCIATION SUPPORTS RESPONDENT’S INTERPRETATION OF SECTION 89(7) 11 POINT III RESPONDENT’S INTERPRETATION RESPECTS THE GENERAL PURPOSES OF FOIL AND ACCOMPLISHES THE SPECIFIC PURPOSE OF SECTION 89(7) 13 CONCLUSION 18 1 TABLE OF AUTHORITIES CASES PAGE(s) Buffalo News, Inc., Matter of v. Buffalo Enter. Dev. Corp., 84 N.Y.2d 488 (1994) 10 Empire Center for N.Y. State Policy v. N.Y. State Teachers’ Retirement System, 103 A.D.3d 1009 (3d Dep’t 2013) 12 Empire Center For New York State Policy v. Teachers’ Retirement System of the City of New York, 103 A.D.3d 593 (1st Dep’t 2013) 1, 12 Fed’n of New York State Rifle & Pistol Clubs, Inc., Matter of v. New York City Police Dep’t, 73 N.Y.2d 92 (1989) 14, 15 Henslee v. Union Planters Nat’l Bank & Trust Co., 335 U.s. 595 (1949) (Justice Frankfurter, dissenting) 6 New York State United Teachers, Matter of v. Brighter Choice Charter School, 15 N.Y.3d 560 (2010) 15 New York Teachers’ Pension Ass’n, Inc., Matter of v. Teachers’ Retirement System of the City of New York, 71 A.D.2d 250 (1st Dep’t 1979) 15, 16 New York Veteran Police Ass’n., Matter of v. New York City Police Dep’t Art. I Pension Fund, 61 N.Y.2d 659 (1983) (“Veteran Police Association”) 2, 11, 12 Schenectady County Soc3i for Prevention of Cruelty to Animals, Inc., Matter of v. Mills, 18 N.Y.3d 42 (2011) 12 11 Table Of Authorities (cont’d) Cases (cont’d) Page(s) The Empire Center for N.Y State Policy v. New York City Police Pension Fund, 88 A.D.3d 520 (1st Dep’t 2011) 1, 3, 12 STATE STATUTES C.P.L.R. article 78 1, 3, 10 § 5602 1 Education Law article 11 8 § 501(8) 8 Public Officers Law article 6 passim §86 17 § 87(2)(b) 1, 10, 15 § 89(2) 11 § 89(2)(b)(iii) 15 § 89(7) passim Retirement and Social Security Law article 2 8 §2(5) 8 § 152(1) 8 Miscellaneous Authorities Black’s Law Dictionary, 8th ed. (2004) at 165 7 http ://www.nystrs.orp/main/library/learnin&aboutstrs.html 10 in PRELIMINARY STATEMENT Petitioner Empire Center for State Policy (“petitioner” or “Empire Center”) sought disclosure under the Freedom of Information Law, Article 6 of the New York Public Officers Law (“FOIL”), of the names of retirees who are receiving pension benefits from respondent New York State Teachers’ Retirement System (“respondent” or the “System”). Respondent denied Empire Center’s request, citing Public Officers Law § 89(7), which exempts from disclosure under FOIL “the home address of... a retiree” and “the name or home address of a beneficiary” of a public retirement system. Petitioner brought an article 78 petition seeking to overturn respondent’s denial. Supreme Court held that respondent properly withheld the names of retirees. The Third Department unanimously affirmed, agreeing with the First Department, which had earlier rejected Empire Center’s arguments in a similar case. Petitioner now appeals pursuant to C.P.L.R. § 5602 by permission of this Court.’ 1 Tins Court also granted petitioner leave to appeal the First Department’s decision in Empire Center For N.Y. State Policy v. Teachers’Retirement System of the City of New York, 103 A.D.3d 593 (1st Dept 2013), in which that court adhered to its earlier decision in The Empire Center for N.Y. State Policy v. New York City Police Pension Fund, 88 A.D.3d 520 (1st Dept 2011), holding that the names of the retirees were exempt from disclosure under section 89(7). Petitioner submitted a single brief addressing both the Third Department’s decision in this case and the First Department’s decision in Teachers’ Retirement System of the City of s”iew York. Both decisions concern the same statutory provision and raise substantially the same issues. Petitioner also briefs, at 22-29, an additional issue, whether the disclosure of the retiree names would be an unwarranted invasion of personal privacy, and thus precluded by Public Officers Law § 87(2)(b). Respondent in this case did not rely on this argument below (and neither of the Appellate Divisions discussed it), and accordingly, we do not address it in this brief. The Third Department’s decision is correct and this Court should affirm it. First, respondent’s interpretation of Public Officers Law § 89(7) accords with the plain meaning of the statutory text, and does not make any clause superfluous. Second, respondent’s interpretation follows this Court’s decision in Matter of New York Veteran Police Ass ‘n. v. New York City Police Dep’t Art. I Pension Fund, 61 N.Y.2d 659 (1983) (“Veteran Police Association”), which held that section 89(7) exempts both the names and the addresses of retirees receiving pension benefits from disclosure and which remains good law. Finally, respondent’s interpretation implements the statute’s purpose, as demonstrated in its legislative history, to protect the privacy of retirees receiving benefits. Accordingly, this Court should not disturb the balance between personal privacy and disclosure struck by the Legislature in section 89(7), and upheld by this Court in Veteran Police Association, which exempts from disclosure the names of retirees receiving benefits. QUESTION PRESENTED Whether respondent properly withheld from disclosure under FOIL the names of retirees receiving a public pension because the retirees are “beneflciar[iesj of a public employees’ retirement system” whose names are exempt from disclosure under Public Officers Law § 89(7)? 2 PROCEEDINGS BELOW By a letter dated January 9, 2012, petitioner requested that respondent provide an “updated database” of System retirees as of December 31, 2011. The request specified that the database “should include the same parameters and fields as the FOIL request answered by your office in response to previous FOILs filed on 01/07/20 11 and 01/06/20 10” (SR. 18).2 Respondent answered petitioner’s request with a letter noting that petitioner had retrieved a file from respondent’s website that included retirement date, membership date, service credit, maximum monthly pension and last known employer, but further stating that the request was denied to the extent that it requested the names of retirees (SR. 19). Petitioner’s administrative appeal of respondent’s determination to withhold the names of retirees (SR. 21-22) was denied by respondent’s Records Appeal Officer (SR. 23-26). Petitioner commenced this article 78 proceeding challenging respondent’s administrative decision and seeking access to the records specified in their FOIL request (SR. 11-17). Supreme Court denied the petition (SR. 5-7). The court concluded that it was bound to follow the precedents set by this Court in the Veteran Police Association case and the First Department in The Empire Center for N.Y. 2The record in this case will be cited as “SR. followed by a page number. 3 State Policy v. New York City Police Pension Fund, 88 A.D.3d 520 (1st Dep’t 2011) (“Police Pension Fund”). In its decision, the First Department, relying on this Court’s decision in Veteran Police Association, held that, under section 89(7), the pension fund properly denied the FOIL request seeking the names of its retired members. The Third Department unanimously affirmed (SR. 48-50). The court held that this Court’s decision in Veteran Police Association was binding and dispositive of petitioner’s claim. According to the court, Veteran Police Association interpreted Public Officers Law § 89(7) as “exempting from disclosure both the names and home addresses of retirees of a public employees’ retirement system” (SR. 49). Although petitioner had attempted to distinguish Veteran Police Association on the ground that the FOIL request there was for both the names and addresses of the retirees, whereas the request here was only for the names, the Third Department rejected this argument. Citing cases that prohibit a party from a denying a FOIL request outright on the basis that it encompasses exempt material, and that instead require disclosure with appropriate redaction, the court reasoned that if only the addresses of retirees had been exempt from disclosure in Veteran Police Association, “the Court could have directed the agency to disclose the names, but not the addresses” (SR. 50). Instead, “the Court of Appeals held that 4 Public Officers Law § 89(7) foreclosed any relief to the petitioner therein” (SR. 50). The Third Department also noted that the First Department had similarly concluded that retirees’ names were exempt under section 89(7) in the Police Pension Fund case (SR 50). ARGUMENT SECTION 89(7) EXEMPTS THE REQUESTED NAMES FROM FOIL DISCLOSURE The Third Department correctly held that section 89(7) exempts the requested names from FOIL disclosure. First, respondent’s interpretation of Public Officers Law § 89(7) accords with the plain meaning of the statutory text. Retirees who are currently receiving benefits from respondent are plainly “benficiar[iesj of a public employees’ retirement system,” whose names and home addresses the statute exempts from disclosure. Second, respondent’s interpretation follows this Court’s decision in Veteran Police Association, which held that section 89(7) exempts the names and addresses of retirees from disclosure and which remains good law. That decision followed closely the Legislature’s 1983 enactment of section 89(7) and thus reflects the contemporaneous understanding of the provision. Third, respondent’s interpretation implements the statute’s purpose, as demonstrated in its legislative history, to protect retiree privacy by 5 exempting their names in addition to their home addresses from FOIL disclosure. Consequently, this Court should affirm. Empire Center argues throughout its brief that respondent’s interpretation of section 89(7) is undermined by the fact that before 2012, respondent did disclose the retiree names in response to FOIL requests similar to that at issue here. This argument has no merit. First, there is no logical inconsistency in respondent’s actions. Section 89(7) provides that disclosure of the names is not required by FOIL; the statute does not say that disclosure is prohibited. And more importantly, respondent may always revise its prior legal interpretations based upon a more complete understanding of the law. Here, upon consideration of the First Department’s 2011 decision in the Police Pension Fund case, respondent determined that it was in fact proper for it to withhold the names of its retirees from FOIL disclosure pursuant to section 89(7). “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.” Henslee v. Union Planters Nat’l Bank & Trust Co., 335 P• 595, 600 (1949) (Justice Frankfurter, dissenting). What matters now is respondent’s determination that section 89(7) exempts the retiree names from FOIL disclosure. As we explain below, that determination is entirely proper. 6 POINT I RESPON1ENT’S INTERPRETATION OF SECTION 89(7) EFFECTUATES ITS PLAIN MEANING Public Officers Law § 89(7) provides that nothing in FOIL requires the disclosure of the “the name or home address of a beneficiary of a public employees’ retirement system.” By any reasonable interpretation of that phrase, a retiree drawing pension benefits is a “beneficiary of a public employees’ retirement system.” Empire Center erroneously contends that respondent’s interpretation conflicts with the plain and ordinary meaning of the term “beneficiary,” which, on its view, means the beneficiary of ai employee (Br. at 11-12). But the statute does not contain these words, and this Court should not add what the Legislature omitted. As written by the Legislature, the statute permits withholding the name and address of a “beneficiary of a public employee’s retirement system.” Nor does the dictionary definition of “beneficiary” provided by Empire Center (Br. at 11-12) conflict with respondent’s interpretation. Rather, the dictionary confirms that the sense of “beneficiary” advocated by petitioner — that of contingent beneficiary —. is merely one among several senses that the term may bear when appropriately qualified. See Black’s Law Dictionary, 8th ed. (2004) at 165. 7 Far from using “beneficiary” at variance with its plain meaning, § 152(1) (defining “beneficiary” as “a person who is receiving a benefit from a public retirement system of the state or who has met all the conditions precedent for the actual receipt of a benefit from a public retirement system of the state, and the monies are due and owing to such person by the public retirement system of the state”). Empire Center relies heavily on the idea that respondent is interpreting the term “retiree” as synonymous with “beneficiary,” thereby rendering superfluous the more limited protection that section 89(7) affords to retirees, exempting home addresses but not names (Br. at 10). Petitioner is mistaken. Respondent’s interpretation preserves a meaning of the term “retiree” that is independent of that of “beneficiary.” Specifically, a retiree respondent’s use in fact mirrors New York retirement statutes. “beneficiary” as “any person in benefit” provided by article 11 of Teachers’ Retirement System for and Social Security Law § 2(5) receipt of a retirement allowance, Retirement and Social Security the definitions of the word given by other See Education Law § 501(8) (defining receipt of a retirement allowance or other the Education law, which governs the State Public School Teachers); see also Retirement (defining “beneficiary” as “[amy person in or other benefit” pursuant to article 2 of the Law); Retirement and Social Security Law 8 who is not currently entitled to receive a pension benefit (because, e.g., the retiree has not yet attained the minimum age required to receive a benefit) is, plainly, not a beneficiary of a public employees’ retirement system; while a retiree receiving such a benefit is. On this view, therefore, the Legislature can be seen as having distinguished between (1) retirees who are not receiving benefits; and (2) those who are, and offered greater protection to the latter group, given that the release of their names — unlike those of the former group — affects their personal privacy by allowing them to be publicly connected to their pension information. Nothing in this reading of section 89(7) renders any of its terms superfluous or offends any principle of statutory construction. Petitioner’s additional attempts to support its reading of the statute are similarly flawed. First, the legislative history of section 89(7) does not suggest that at the time of passage, the term “beneficiary’ was intended to exclude retirees receiving pension benefits, because the legislative materials on which petitioner relies for this point merely repeat the terms of the statute, without further clarification as to their scope (Br. at 11). On the contrary, as demonstrated at Point III, below, other aspects of the legislative history of the exemption indicate that it was intended to protect the names of retirees. 9 Second, petitioner’s reliance on four advisory opinions of the Committee on Open Government is also misplaced (Br. at 12-13, n. 6). Only the opinions dated May 19, 1993, and January 8, 2010, interpret section 89(7); the other two opinions cited by petitioner relate to section 87(2)(b). But in any event, advisory opinions of the Committee on Open Government are “neither binding upon the agency nor entitled to greater deference in an article 78 proceeding than is the construction of the agency.” Matter of Buffalo News, Inc. a Buffalo Enter. Dev. Corp., 84 N.Y.2d 488, 493 (1994) (internal quotation omitted). This Court should ascribe no weight to the Committee’s conclusions in the cited opinions, which are mistaken for the same reasons that the Empire Center’s arguments here are mistaken. Third, Empire Center points to respondent’s use of the term “beneficiaries” on its website to refer to persons designated to receive benefits on the retiree’s death as proof that this use represents the plain and ordinary meaning of the term (Br. at 12), Respondent’s website does not establish anything about the ordinary, unqualified meaning of “beneficiary,” however, because the website clearly specifies that the referenced beneficiaries are “beneficiaries of the deceased,”3a phrase that is pointedly absent from section 89(7), which refers instead to beneficiaries “of a public employees’ retirement system.” Thus, the usage reflected on respondent’s website supports rather 3See Learning About NYSTRS, htty://www.nystrs.orp/niajn/ljbrary/learnjngaboutstrs.html. 10 than undermines respondent’s interpretation of the statute. For all these reasons, this Court should adopt respondent’s interpretation of section 89(7), which gives full effect to the statute’s plain meaning and is consistent with the principles of statutory construction. POINT II THIS COURT’S DECISION IN VETERAN POLICE ASSOCIATION SUPPORTS RESPONDENT’S INTERPRETATION OF SECTION 89(7) This Court does not confront the issue of the scope of section 89(7) on a blank slate. In Veteran Police Association, the Court resolved the question in favor of protecting the names of retirees receiving pension benefits. As both the Third and First Departments correctly held, Veteran Police Association governs this issue. There, the petitioner sought “to obtain access to the names and addresses of all retirees of the New York City Police Department currently receiving pensions and annuities.” 61 N,Y.2d at 660. Although the case had originally been litigated under Public Officers Law § 89(2), section 89(7) took effect after the decision of the Appellate Division and after the principal briefing in this Court. Reciting the language of the newly enacted provision, this Court held that it applied to the proceeding and “foreclose[s] relief to petitioner.” Id. at 661. 11 Petitioner’s argument that the holding in Veteran Police Association applies only to requests for disclosure of both names and addresses (Br. at 15) is mistaken, because were that so, the Court could have directed respondent to disclose the names, but not addresses, of its retirees. See Matter of Schenectady County Soc 3.’ for Preuention of Cruelty to Animals, Inc. u. Mills, 18 N.Y.3d 42, 46 (2011) (agency must generally redact exempt portion of record and disclose non-exempt portion). Instead, the Court held that section 89(7) foreclosed any relief to petitioner and dismissed the petition. 61 N.Y.2d at 661. While Empire Center speculates that the petitioner in Veteran Police Association would have had no use for the names alone because they would not have enabled it to solicit police retirees (Br. at 15), there is no indication that the petitioner there ever represented as much to this Court. Accordingly, the two Appellate Divisions to have addressed this issue have correctly found that Veteran Police Association held that both names and addresses of retirees are exempt from disclosure. See The Empire Center for N.Y State Policy u. New York City Police Pension Fund, 88 A.D.3d 520 (1st Dep’t 2011); Empire Center for N.Y State Policy v. N.Y State Teachers’ Retirement System, 103 A.D.3d 1009 (3d Dep’t 2013) (SR at 48-50); see also Empire Center for N.Y State Policy v. Teachers’ Retirement System of City of New York, 103 A.D.3d 593 (let Dept 2013). By contrast with petitioner’s 12 reading of the statute, Veteran Police Association implements the plain language and intended purpose of section 89(7), and for these reasons, the case remains good law and should not be overruled. POINT III RESPONDENT’S INTERPRETATION RESPECTS THE GENERAL PURPOSES OF FOIL AND ACCOMPLISHES THE SPECIFIC PURPOSE OF SECTION 89(7) Respondent’s invocation of section 89(7) to withhold the names of retirees drawing pension benefits both fits with the general purposes of FOIL and accomplishes the specific purpose of this provision to protect the privacy of retirees. In its brief, Empire Center claims that the Third Department’s decision defeats the basic objectives of FOIL by allowing respondent to withhold from the press and public information necessary for them to perform “their ‘watchdog’ role [and] effectively oversee the billions of dollars New York State spends to support the pension funds of its civil servants...” (Br. at 20). As demonstrated below, petitioner’s attempt to show a conflict with FOIL’s general purposes fails because FOIL also recognizes the personal privacy interests of those affected by the disclosure sought. As an initial matter, while the information requested by respondent undoubtedly has value in aiding the public and the press in identiring fraud and abuse in respondent and other New York pension systems, Empire 13 Center overstates the degree to which the withholding of this information inhibits these tasks. Not only is aggregate pension data available, but in response to Empire Center’s FOIL request here, respondent provided it with each member’s individual pension data, with only their names and home addresses withheld to protect their personal privacy pursuant to section 89(7) (SR. 19). Moreover, when emphasizing the usefulness of names in rooting out individual cases of fraud, petitioner cites investigations and audits performed by the State and New York City Comptrollers’ Offices (Br. at 20, n. 17 and 18), i.e., the elected public officials with primary responsibility for policing their respective pension systems and who do not rely on FOIL to obtain the names of individual pension participants. These public officers and others are vigorously enforcing the pension laws. Accordingly, section 89(7) should be interpreted in light of the fact that the enforcement of the State’s pension laws and the detection of fraud are functions primarily entrusted to public officials rather than private actors. More broadly, FOIL does not mandate universal disclosure but instead embodies a series of compromises which balance the value in disclosure against the need to protect personal privacy. This Court’s decisions confirm that the protection of personal privacy continues to be a valid basis for denying FOIL disclosure. See Matter of Fed’n of New York State Rifle & 14 Pistol Clubs, Inc. v. New York City Police Dep ‘t, 73 N.Y.2d 92 (1989); Matter of New York State United Teachers v. Brighter Choice Charter School, 15 N.Y.3d 560 (2010). In both cases the Court of Appeals held that the respondent could refuse to disclose a list of names in reliance on the personal privacy exemption in section 89(2). Fed’n of New York State Rifle & Pistol Clubs, 73 N.Y.2d at 95; New York State United Teachers, 15 N.Y.3d at 564. A similar concern for personal privacy prompted the passage of section 89(7), which was enacted in response to the Appellate Division decision in Veteran Police Association and the earlier decision in Matter of New York Teachers’ Pension Ass’n, Inc. v. Teachers’ Retirement System of the City of New York, 71 A.D.2d 250 (1st Dep’t 1979). In both those cases, the respondent retirement system resisted disclosing both the names and addresses of retirees to organizations which intended to use that information to solicit dues-paying memberships or sell goods to the retirees. In each case, the Appellate Division held that the names and addresses were not protected from disclosure under the relevant law, Public Officers Law § 87(2)(b) and 89(2)(b)(lii), which authorize an agency to withhold lists of names and addresses if such lists would be used for “commercial or fund-raising purposes.”4 Rather than clarifying the scope of that specific provision, the Legislature responded to these decisions by enacting section 89(7), which The term “commercial in this provision was later changed to ‘solicitation.’ 15 permits an agency to withhold the names and addresses of beneficiaries of a retirement system regardless of the purpose for which they are sought. Petitioner’s construction of section 89(7) would narrow the exemption to home addresses alone and thus would not fully implement the legislative intent to overrule cases where the names of retirees were also disclosed. The legislative history of section 89(7) confirms the Legislature’s intent to protect the privacy of retirees. According to the Division of the Budget’s report recommending approval of the legislation, section 89(7) was intended to “reduce the harassment of public employees by... allowing agencies to not disclose agency lists of public employee home addresses.... [and] allowing agencies to not disclose agency lists of public retirees.” Budget Report on Bills (July 14, 1983), reprinted in Bill Jacket for ch. 783 (1983) at 7. The Division explained that the existing statute, section 89(2)(b)(iii), prohibiting the disclosure of retiree lists that were intended to be used for commercial or fundraising purposes, was “virtually unenforceable,” because “the State cannot easily monitor the use of the lists once they are disclosed.” Id. The Division of the Budget Report specifically states that section 89(7) was intended to abrogate the result in the Matter of New York Teachers’ Pension Ass’n, Inc., 71 A.D.2d 250. Id. at 8. Thus, section 89(7) should be construed 16 in light of the express legislative policy of protecting the personal privacy interests of retirees. Finally, we observe that legislation has been introduced that would, if enacted, reverse the Legislature’s policy judgment in adopting section 89(7), upheld by this Court in Veteran Police Association, that retiree names should be exempt from FOIL disclosure. See 2013 New York Assem. Bifi No. 5171. The proposed bill would add definitions of the terms “retiree” and “beneficiary” to the Public Officers Law § 86 that would exclude retirees drawing pension benefits from the latter group. The introduction of this legislation supports the conclusion that any change in the interpretation of section 89(7) should be made by the Legislature and not by this Court. Respondent’s interpretation of section 89(7), upheld by two Appellate Divisions, is faithful to the plain meaning of the statute’s language as interpreted by this Court, adheres to FOIL’s general purposes, and accomplishes the specific legislative goal of the statute to protect the names of retirees from disclosure. Accordingly, this Court should affirm the Third Department’s order. 17 CONCLUSION For all the foregoing reasons, the order of the Appellate Division, Third Department affirming the judgment of Supreme Court denying the petition should be affirmed. Dated: Albany, New York October 8, 2013 Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondent DiNapoli By: JEPI$REt W. LANKY Assistant Solicitor General Office of the Attorney General The Capitol Albany, New York 12224 (518) 474-1394 BARBARA D. UNDERWOOD Solicitor General ANDREW D. BINci Deputy Solicitor General JEFFREY W. LANG Assistant Solicitor General of Counsel Reproduced on Recycled Paper 18