In the Matter of Empire Center for New York State Policy, Appellant,v.New York State Teachers' Retirement System, Respondent.BriefN.Y.March 26, 2014Court of Appeals STATE OF NEW YORK In re Application of EMPIRE CENTER FOR NEW YORK STATE POLICY, Appellant, For a Judgment under Article 78 of the Civil Practice Law and Rules -against- NEW YORK STATE TEACHERS' RETIREMENT SYSTEM, Respondent. Albany County Index No. 1221112 In re Application of ElVIPIRE CENTER FOR NEW YORK STATE POLICY, 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. New York County Index No. 102055112 AMICUS CURIAE BRIEF ON BEHALF OF NYSUT IN SUPPORT OF RESPONDENTS ruCHARDE.CASAGRANDE Attorney for Amicus Curiae NYSUT 52 Broadway, 9th Floor, New York, NY 10004 Telephone: (212) 533-6300 Facsimile: (212) 228-9253 Email: kgross@nysutmail.org Keith J. Gross, OfCounsel Reproduced on Recycled Paper TABLE OF CONTENTS Page TABLE OF AUTHORlTIES .......................................... ii STATEMENT OF INTEREST ........................................ 2 ST ATEMENT OF FACTS ........................................... 5 DECISIONS BELOW ............................................... 6 ARGUMENT POINT I THE LOWER COURTS' DECISIONS WERE CONSISTENT WITH EXISTING PRECEDENT AND APPLIED THE PROPER INTERPRETATION OF FOIL ................................... 8 POINT BOTH FOIL AND FOIA DECISIONS AND LEGISLATIVE II HISTORY DEMONSTRATE THAT THE NAMES OF RETIREES SHOULD NOT BE DISCLOSED ............................... 15 POINT III WITHOUT RETIREES' NAMES, EMPIRE CENTER STILL HAS ACCESS TO INFORMATION UNDER FOIL THAT ALLOWS IT TO ACCOMPLISH ITS PURPOSE .............................. 20 CONCLUSION ................................................... 22 111245 TABLE OF AUTHORITIES Page Cases: Amorosi v. South Colonie Indep. Cent. Sch. Dist., 9 N.Y.3d 367 (2007) ........ 3 Buffalo News, Inc. v. Buffalo Enter. Dev. Corp., 84 N.Y.2d 488 (1994) ....... 14 Condon v. Sabater, 2013 NY Slip. Op. 69173(U) (lst Dep't 2013) ........... 3 Condon v. Sabater, Index No. 401175112 (Sup. Ct., NY Co. 2012) ........... 3 CSEA, LocaliOOO v. New York State Pub. Employment Relations Bd., 35 A.D.3d 1005 (3d Dep't 2006) ...................................... 3 Cunningham v. New York State Dep 't ofLabor, 2013 NY Slip. Op. 04838 (2013) ........................................... 3 Empire Center for New York State Policy v. New York City Police Pension Fund, 88 A.D.3d 520 (lst Dep't 2011), Iv. denied, 18 N.Y.3d 901 (2012) ... 5, 13 Empire Center for New York State Policy v. New York State Teachers' Retirement System, 103 A.D.3d 1009 (3d Dep't 2013) .................. 6,12 Empire Center for New York State Policy v. Teachers' Retirement System ofthe City ofNew York, 103 A.D.3d 593 (lst Dep't 2013) ................... 6,7,9 Empire Realty Corp. v. New York State Div. ofLottery, 230 A.D.2d 270 (3d Dep't 1997) ..................................... 15 Fink v. Lefkowitz, 63 A.D.2d 569 (lst Dep't 1978), modified, 47 N.Y.2d 567 (1979) ................................... 15, 16 Godfrey v. Spano, 13 N.Y.3d 358 (2009) ................................ 3 Highbyv. Mahoney, 48 N.Y.2d 15 (l979) ............................... 9 111245 11 Hopkins v. United States Department ofHousing and Urban Development, 929 F.2d 81 (2d Cir. 1991) .............................. 18 John P. v. Whalen, 54 N.Y.2d 89 (1981) ............................... 14 Kahn v. New York City Dep't ofEduc., 18 N.Y.3d 457 (2012) ................ 3 Kahn v. New York City Dep 't ofEduc., 79 A.D.3d 521 (1st Dep't 2010) ....... 3 Katzv. New York City Teachers' Ret. Bd., 291 N.Y. 360 (1943) ............. 11 N. Y Charter Sch. Ass 'n v. DiNapoli, 13 N.Y.3d 120 (2009) ................. 3 National Ass 'n ofRetired Federal Employees v. Horner, 879 F.2d 873(D.C. Cir. 1989), cert. denied, 494 U.S. 1078 (1990) ........ 16, 17 New York Charter Sch. Ass 'n v. Smith, 15 N.Y.3d 403 (2010) ............... 3 New York City Transit Auth. v. Transport Workers Union ofAm., 14 N.Y.3d 119 (2010) ............................................... 3 New York City Transit Auth. v. Transport Workers' Union ofAm., 306 A.D.2d 486 (2d Dep't 2003) ...................................... 3 New York State Office ofChildren and Family Services v. Lanterman, 14 N.Y.3d 275 (2010) ............................................... 3 New York State United Teachers v. Brighter Choice Charter School, 15 N.Y.3d 560 (2010) ........................................... 12,13 New York Teachers Pension Associates v. Teachers' Retirement System of the City ofNew York, 71 A.D.2d 250 (1st Dep't 1979), Iv. denied, 49N.Y.2d 701 (1980) ......................................... 9,10,11 New York Teachers Pension Ass 'n v. Teachers' Ret. Sys. ofthe City of New York, 98 Misc. 2d 1118 (Sup. Ct., NY. Co. 1979) .................... 10 111245 111 New York Veteran Police Ass 'n v. New York City Police Department Art. I Pension Fund, 61 N.Y.2d 659 (1983) .............................. passim NYSCOPBA v. New York State Pub. Employment Relations Bd, 309 A.D.2d 1118 (3d Dep't 2003) ..................................... 3 Rosenblum v. New York City Conflicts ofInterest Board, 18 N.Y.3d 422 (2012) ............................................... 3 Rosenblum v. New York City Conflicts ofInterest Board, 75 A.D.3d 426 (1st Dep't 2010) ....................................... 3 Sheet Metal Workers Int 'I Ass 'n v. United States Air Force, 63 F.3d 994 (10th Cir. 1995) ...................................... 18, 19 Statutes: Education Law § 501(8) ............................................ 11 Public Officers Law § 89(2)(b) ...................................... 15 Public Officers Law § 89(7) ..................................... passim Retirement and Social Security Law § 2(5) ............................. 11 Retirement and Social Security Law § 302(5). . ......................... 11 Other Authorities: Chapter 783 of the Laws of 1983 ..................................... 12 New York City Administrative Code § 13-501(12) ........................ 11 111245 IV COURT OF APPEALS STATE OF NEW YORK In re Application of EMPIRE CENTER FOR NEW YORK STATE POLICY, Appellant, For a Judgment under Article 78 of the Civil Practice Law and Rules -against- NEW YORK STATE TEACHERS' RETIREMENT SYSTEM, Respondent. Albany County Index No. 1221112 In re Application of EMPIRE CENTER FOR NEW YORK STATE POLICY, 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. New York County Index No. 102055112 111245 STATEMENT OF INTEREST The New York State United Teachers ("NYSUT") is a statewide labor organization affiliated with the American Federation of Teachers, the National Education Association and the AFL-CIO, and has over 1,263 local affiliated unions. These unions represent over 600,000 public and private sector employees and retirees in New York State. The majority ofNYSUT members are in-service or retired public school teachers and school-related professionals, including guidance counselors, secretaries, psychologists, nurses, social workers, custodians, and bus drivers. The largest local union affiliated with NYSUT is the United Federation of Teachers ("UFT"), which is the exclusive collective bargaining representative of all non supervisory pedagogical personnel and instructional paraprofessionals employed by the Board of Education of the City School District of the City of New York. The overwhelming majority ofNYSUT's membership are members in the New York State Teachers' Retirement System ("NYS TRS") and Teachers' Retirement System ofthe City ofNew York ("NYC TRS"), and are currently receiving or will receive a pension from the ]\JYS TRS or ]\JYC TRS in retirement. On numerous issues of education and labor policy, NYSUT is regarded as the representative of the teaching profession in this State. As such, NYSUT has previously appeared as amicus curiae in a number ofcases which could impact upon 111245 2 its members and public employees. Cases in which NYSUT has appeared as amicus curiae include the following: Cunningham v. New York State Dep't ofLabor, 2013 NY Slip. Gp. 04838 (2013); Condon v. Sabater, 2013 NY Slip. Gp. 69173(U) (1st Dep't2013); Rosenblum v. New York City Conflicts ofInterest Board, 18 N.Y.3d422 (2012); Kahn v. New York City Dep't ofEduc., 18 N.Y.3d 457 (2012); Condon v. Sabater, Index No. 401175112 (Sup. Ct., NY Co. 2012); Rosenblum v. New York City Conflicts ofInterest Board, 75 A.D.3d 426 (1 st Dep't 2010); Kahn v. New York City Dep't ofEduc., 79 A.D.3d 521 (lst Dep't 2010); New York City Transit Auth. v. Transport Workers Union ofAm., 14 N.Y.3d 119 (2010); New York State Office of Children and Family Services v. Lanterman, 14 N.Y.3d 275 (2010); New York CharterSch. Ass 'n v. Smith, 15 N.Y.3d403 (2010); Godfreyv. Spano, 13 N.Y.3d358 (2009);N. Y. CharterSch. Ass 'n v. DiNapoli, 13 N.Y.3d 120 (2009); Amorosiv. South Colonie Indep. Cent. Sch. Dist., 9 N.Y.3d 367 (2007); CSEA, LocaliOOO v. New York State Pub. Employment Relations Bd., 35 A.D.3d 1005 (3d Dep't 2006); NYSCOPBA v. New York State Pub. Employment Relations Bd., 309 A.D.2d 1118 (3d Dep't 2003); New York City Transit Auth. v. Transport Workers' Union ofAm., 306 A.D.2d 486 (2d Dep't 2003). Here, appellant unlawfully demands that respondent NYS TRS and respondent NYC TRS disclose the names of retired pedagogues, despite consistent precedent 111245 3 holding that such infonnation is exempt from disclosure under the New York Freedom of Infonnation Law ("FOIL"). In light of appellant's arguments in the appeals, this matter implicates the rights ofNYSUT's members to have the privacy in retirement afforded by Public Officers Law § 89(7), and avoid potential harassment that is deemed impermissible under FOIL. As such, the instant matter will have a direct impact on NYSUT's thousands of members who receive pensions from the NYS TRS or NYC TRS after exiting from public service. Because ofthe overarching significance ofthe issues presented by these cases to a large portion of NYSUT's membership, and in light of NYSUT's particular familiarity and expeltise with the education law and labor policy, NYSUT submits this brief to address arguments that might otherwise not be presented. IIl245 4 STATEMENT OF FACTS A brief review of the facts pertinent to the arguments of the amicus curiae is provided below. On or about January 9, 2012, appellant Empire Center for New York State Policy ("Empire Center") submitted FOIL requests to the NYS TRS and NYC TRS for specific information, including the names of retired members of each retirement system (SR. 18-19; CR. 16,21). I In response, the NYS TRS and NYC TRS provided certain portions of the requested information, but both appropriately withheld retirees' names in accordance with FOIL (SR. 19-20; CR. 22-24). Thereafter, Empire Center filed administrative appeals as permitted under FOIL, which both the NYS TRS and NYC TRS lawfully denied (SR. 23-26; CR. 27 28). The appeal officers for the NYS TRS and NYC TRS cited Empire Center for New York State Policy v. New York City Police Pension Fund, 88 A.D.3d 520 (1st Dep't 2011) as a basis for denying access to the names of retirees (SR. 24, 25; CR. 27-28). The NYS TRS also relied upon New York Veteran Police Ass 'n v. New York City Police Department Art. 1 Pension Fund, 61 N.Y.2d 659 (1983) (SR. 24). I References to the Record on Appeal filed in the NYS TRS case are identified as SR. __, whereas references to the Record on Appeal filed in the NYC TRS case are identified as CR. __ 111245 5 DECISIONS BELOW In Empire Center for New York State Policy v. New York State Teachers' RetirementSystem, 103 A.D.3d 1009,1010 (3dDep't2013), the Appellate Division, Third Department, held that the NYS TRS "properly denied" the FOIL request for retiree names, finding it was "bound" by this Court's decision in New York Veteran Police Ass 'n, "wherein [this] Court interpreted Public Officers Law § 89(7) as exempting from disclosure both the names and home addresses ofretirees ofa public employees' retirement system." The Third Department rejected appellant's argument that the FOIL request in New York Veteran Police Ass 'n could be distinguished on the basis that the request there "was for both the names and the addresses of retirees, whereas the request here was for the names only." New York State Teachers J Ret. Sys., 103 A.D.3dat 1010. The Third Department explained that "ifonlythe addresses of the retirees were exempt from disclosure, [this] Court could have directed the agency to disclose the names .... " New York State Teachers J Ret. Sys., 103 A.D.3d at 1010. Likewise, in Empire Center for New York State Policy v. Teachers' Retirement System of the City ofNew York, 103 A.D.3d 593 (1st Dep't 2013), the Appellate Division, First Department, affirmed the denial ofappellant's FOIL request for names of retired members of the NYC TRS. The First Department indicated that this 111245 6 determination was in accord with prior precedent, inc1udingNew York Veteran Police Ass 'n and "the principle ofstare decisis, which applies with particular force to issues of statutory interpretation." Teachers' Ret. Sys. a/the City a/New York, ]03 A.D.3d at 593. 111245 7 ARGUMENT POINT I THE LOWER COURTS' DECISIONS WERE CONSISTENT WITH EXISTING PRECEDENT AND APPLIED THE PROPER INTERPRETATION OF FOIL Appellant tries to characterize the decisions ofthe First and Third Departments as a reinterpretation of Public Officers Law § 89(7) and an ignoring of precedent. Quite to the contrary, the lower courts' decisions in the instant cases follow, and are consistent with, precedent that has existed for 30 years. In New York Veteran Police Ass 'n, 61 N. Y.2d at 660-61, this Court considered and applied the newly-enacted Public Officers Law § 89(7) to a FOIL request for retirees' names. Public Officers Law § 89(7) provides: Nothing in this article shall require the disclosure of the home address of an officer or employee, former officer or employee, or ofa retiree ofa public employees' retirement system; nor shall anything in this article require the disclosure ofthe name or home address of a beneficiary of a public employees' retirement system or of an applicant for appointment to public employment.. .. Without hesitation, this Court found in New York Veteran Police Ass 'n, 61 N.Y.2d at 661, that the above statutory language foreclosed a FOIL request for retirees' names. 111245 8 Under the principle of stare decisis, this Court need not look any further to conclude that appellant's FOIL requests here were properly denied. See Teachers' Ret. Sys. ofthe City ofNew York, 103 A.D.3dat 593; Highbyv. Mahoney, 48 N.Y.2d 15,18-20 (1979). But even were this Court to analyze the issue further, the Court will see that the circumstances preceding the decision in New York Veteran Police Ass 'n only bolster a finding that the names of retired employees can be withheld under FOIL. The case law and factors leading up to the 1983 amendment to FOIL, which added Public Officers Law § 89(7) to the Jaw, support that retirees and beneficiaries refer to the same individuals. The 1983 FOIL amendment followed the decision in New York Teachers Pension Associates v. Teachers' Retirement System ofthe City ofNew York, 71 A.D.2d 250 (1st Dep't 1979), Iv. denied, 49 N.Y.2d 701 (1980). In that case, the Appellate Division, First Department, considered whether "the names and home addresses ofretired New York City School teachers from the [NYC TRS]" should be disclosed pursuant to a FOIL request. New York Teachers Pension Associates, 71 A.D.2d at 251. As the NYC TRS failed to meet its "burden ofshowing that the material sought" could be withheld under FOIL - as the law existed at that time - the court held that the NYC TRS was required to disclose "a list of the names 111245 9 and addresses of its beneficiaries ...." New York Teachers Pension Associates, 71 A.D.2d at 257. What is most intriguing about the decision in New York Teachers Pension Associates is that the First Department used the term "beneficiaries" interchangeably with retired teachers. Similarly, the Supreme Court, New York County, in that matter referred to the petitioner's FOIL request for the names and home addresses ofretirees as a request for "a list of its present beneficiaries." New York Teachers Pension Ass 'n v. Teachers' Ret. Sys. ofthe City ofNew York, 98 Misc. 2d 1118 (Sup. Ct., NY. Co. 1979). The Supreme Court, New York County, left no doubt that "beneficiaries" referred to retirees, recognizing that "petitioner will probably solicit the retirees whose identity is furnished" and stating that it "doubt[ ed] that within the context of this request, a retiree's name and address is information of a personal nature." New York Teachers Pension Ass 'n, 98 Misc. 2d at 1119. With this background, there is nothing unusual or inconsistent with this Court holding in 1983 or now that the word "beneficiary" in Public Officers Law § 89(7) refers to retirees. Rather, in the context of FOIL, it was understood by the courts both before and after the 1983 amendment to FOIL that "beneficiaries" was synonymous and interchangeable with retirees. 111245 10 This is in accord with the definition of "beneficiary" used throughout the retirement legislation. See Education Law § 501 (8); Retirement and Social Security Law §§ 2(5), 302(5); New York City Administrative Code § 13-501(12). While appellant cites a dictionary definition of "beneficiary," as the NYS TRS and NYC TRS recognized when denying Empire Center's administrative appeals, the relevant inquiry should be how the applicable legislation defines "beneficiary" (SR. 24; CR. 28). For instance, the New York City Administrative Code § 13-501(12) defines "beneficiary" as "any person in receipt ofa pension ...." This definition existed well before the First Department's 1979 decision in New York Teachers Pension Associates and this Court's 1983 decision in New York Veteran Police Ass 'no See Katzv. New York City Teachers' Ret. Bd., 291 N.Y. 360, 363 (1943) (discussing how the code defines "beneficiary" as '" a person in receipt of a pension ... '" and that "a teacher. ..becomes a 'beneficiary' after retirement and receipt of retirement benefits ... "). The definition in the New York City Administrative Code nearly mirrors the definition in the Education Law and Retirement and Social Security Law, both of which define "beneficiary" as "any person in receipt of a retirement allowance ...." See Education Law § 501(8); Retirement and Social Security Law §§ 2(5), 302(5). Accordingly, the Court can identify from the foregoing retirement provisions that appellant's arguments lack merit. ]]1245 11 Further, the timing of the 1983 FOIL amendment indicates that it was a direct response to pending litigation in New York Veteran Police Ass 'n. Notably, Chapter 783 of the Laws of 1983 provided that the act would "apply to any request pursuant to the public officers law for which there is no final determination, including judicial review." Research has not revealed any other pending case circa July 1983 when the law was passed - that could have been the subject ofthe Legislature's reference. Moreover, if this Court believed that retirees' names could be disclosed under Public Officers Law § 89(7) while redacting home addresses, this Court had every opportunity to consider and declare that in New York Veteran Police Ass 'n. As the Third Department recognized below, "if only the addresses of the retirees were exempt from disclosure [in New York Veteran Police Ass 'n], [this] Court could have directed the agency to disclose the names, but not the addresses." See New York State Teachers 'Ret. Sys., 103 A.D.3dat 1010. The absence ofany such ruling in New York Veteran Police Ass 'n further elucidates that FOIL's prohibition on the disclosure of retirees' names is clear-cut and cannot be distinguished on the basis that another piece of information, i.e., retirees' addresses, was also requested. In fact, this Court recently considered and rejected such argument in New York State United Teachers v. Brighter Choice Charter School, 15 N.Y.3d 560,566 (2010) (emphasis in original), averring that there was "[no] merit to NYSUT's contention 111245 12 that it is entitled to teachers' names because it dropped its request for 'names and addresses' and seeks only the names." This Court reached that conclusion on the basis that FOIL "would have little meaning if entities could circumvent the fund raising exemption by gaining access to only the names and then linking them to a home address." Brighter Choice, 15 N.Y.3d at 566. If retirees' names were to be released here, not only could the names be linked to retirees' home addresses - which are not accessible under FOIL but the privacy concerns would be even more heightened since retirees' names would appear alongside their personal financial information. This critical privacy issue is discussed further in Point II below, but suffice it to say at this point that this Court should apply Brighter Choice and once again find that the "policy concerns underlying the personal privacy exemption are no less implicated under [a] scenario" where names are released without addresses. Brighter Choice, 15 N.Y.3d at 566. Two years ago, the First Department dealt with the same issue presented here in Empire Center for New York State Policy v, New York City Police Pension Fund, 88 A.D.3d 520, 521 (1st Dep't 2011) (citing New York Veteran Police Ass 'n, 61 N.Y.2d 659), lv, denied, 18 N.Y.3d 901 (2012), a case in which the court held that a request for retirees' names was "correctly denied." Accordingly, all the court decisions addressing this issue since the 1983 FOIL amendment have reached the 111245 13 same conclusion names ofretirees are exempt from disclosure under FOIL, Public Officers Law § 89(7). Considering the consistent precedent dictates that retirees' names can be withheld under FOIL, appellant's contentions about advisory opinions of the Committee on Open Government ("COG") are irrelevant. This Court has "note[ d] that the advisory opinions of[COG] 'are neither binding upon the agency nor entitled to greater deference in an Article 78 proceeding than is the construction of the agency. ,,, Buffalo News, Inc. v. Buffalo Enter. Dev. Corp., 84 N.Y.2d 488,493 (1994) (quoting John P. v. Whalen, 54 N.Y.2d 89, 96 (1981)). Therefore, COG's opinions, which directly contradict long-standing court precedent, have no bearing on this matter. Though respondents NYS TRS and NYC TRS may have the discretion to disclose the requested information, respondents simply cannot be compelled to disclose retirees' names in response to a FOIL request. Thus, considering the consistent precedent and principle of stare decisis, the Court should affirm the lower courts' decisions and hold that FOIL does not permit the relief appellant seeks here. 111245 14 POINT II BOTH FOIL AND FOIA DECISIONS AND LEGISLATIVE HISTORY DEMONSTRATE THAT THE NAMES OF RETIREES SHOULD NOT BE DISCLOSED Whether the Court analyzes this appeal under Public Officers Law § 89(7) or considers whether disclosure would constitute an unwarranted invasion of personal privacy, FOIL decisions and decisions under the federal Freedom ofInformation Act ("FOIA") show a retiree's name should not be disclosed. For a FOIL request, when determining whether records other than those specifically enumerated in Public Officers Law § 89(2)(b) are covered by the exemption, '" an unwarranted invasion ofpersonal privacy is measured by what would be offensive and objectionable to a reasonable [person] of ordinary sensibilities ... This determination requires balancing the competing interests of public access and individual privacy. '" Empire Realty Corp. v. New York State Div. ofLottery, 230 A.D.2d 270,273 (3d Dep't 1997). Under that standard, the Court should find that a privacy issue exists here and that it is implicated by disclosure of retirees' names. This point is clearly fleshed out by the federal courts' treatment ofFOIA matters. In this case, it is appropriate for this Court to look to "federal appellate interpretations ...of comparable language" under FOIA because FOIL "in 111245 15 general. .. [was] patterned on [FOIA]." See Finkv. Lefkowitz, 63 A.D.2d 569,570 (1st Dep't 1978), modified, 47 N.Y.2d 567 (1979). In National Ass 'n ofRetired Federal Employees v. Horner, 879 F.2d 873, 874, 879 (D.C. Cir. 1989), cert. denied, 494 U.S. 1078 (1990), the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") found that because release of "the names and addresses of retired or disabled federal employees ... 'who were added to the annuity rolls between April 1, 1981 and December 31, 1984'" would result in an unwarranted invasion ofpersonal privacy, such information could be withheld under FOIA. Though the D.C. Circuit considered the argument that "disclosure of the names and addresses of federal annuitants 'would inform the public, at least in part, where its money is going, '" the court held that this did not show a "public interest in ...disclosure of the names and addresses of individuals receiving federal employee retirement benefits." Horner, 879 F.2d at 879. Recognizing "a modest personal privacy interest" against disclosure, the court stated "even a modest privacy interest, outweighs nothing every time." Horner, 879 F .2d at 879. Appellant offers comparable reasons, as those put forth in Horner, for requesting retirees' names here. Appellant asserts that disclosure ofretirees' names allows the public to "generally keep a close eye on the specifics of taxpayers 111245 16 expenditures" and identify how "taxpayer dollars are spent and allocated ...." Applying Horner, appellant's reasons for disclosure are not enough to outweigh retirees' privacy interests. Further, while appellant may be requesting retirees' names for a certain purpose, it has been held under FOIA that "the privacy interest of an individual in avoiding the unlimited disclosure of his or her name and address is significant.. .." See Horner, 879 Fold at 875. Interestingly, this principle is referenced in the bill jacket for the 1983 FOIL amendment, thereby demonstrating a legitimate privacy interest and justification for redacting retirees' names. In the Budget Report on Bills contained in the billjacket, it was recognized that the bill sought "to reduce the harassment of public employees and retirees by...allowing agencies to not disclose agency lists of public retirees" (A. 47).2 The report further exp lained that"[a]s a result ofcurrent discl osure, retirees reportedly are contacted by those operating insurance and rea] estate mail order frauds" (A. 47). Moreover, the report commented that though FOIL prohibited disclosure of "such lists when they are intended to be used for' commercial or fundraising purposes,' this prohibition is virtually unenforceable since the State cannot easily monitor the use of lists once they are disclosed" (A. 47). The report also recommended approval of the 2 References to the Appendix filed in the appeals are identified as A. . 111245 17 bill because it "would reduce the potential. .. for public retirees to be defrauded through the mail" (A. 48). Accordingly, upholding the lower courts' decisions would protect retirees from harassment and potential fraud, and prevent widespread dissemination of retirees' personal information. Arguably, this case concerning a request for retirees' names - paired with retirees' financial retirement information - fits into a category that tips in favor of retirees and redaction, and warrants the denial of appellant's FOIL request. This would be in accord with FOIA rulings such as Hopkins v. United States Department of Housing and Urban Development, 929 F.2d 81, 87 (2d Cir. 1991) (citation omitted), where the United States Court of Appeals for the Second Circuit held that individuals "have a significant privacy interest in avoiding disclosure oftheir names and addresses, particularly where ... the names and addresses would be coupled with personal financial information." See also Sheet Metal Workers lnt 'I Ass 'n v. United States Air Force, 63 F.3d 994, 997 (lOth Cir. 1995) (referencing the "substantial privacy interest in personal identifYing information, such as names and addresses ..."). Moreover, the United States Court of Appeals for the Tenth Circuit stated in Sheet Metal Workers, 63 F.3d at 998, that "the redaction ofaddresses alone, leaving names on the ... records and thereby directly linking detailed financial information ... to those 111245 18 [individuals], does not materially lessen the substantial privacy interest involved [under FOIA]." Accordingly, the FOIA cases support that release of retirees' names in the instant matter would constitute an unwarranted invasion of personal privacy under FOIL. But aside from that, FOIA decisions generally illustrate that this Court properly interpreted FOIL in New York Veteran Police Ass 'n and that appellant has not set forth a legitimate reason for reversing the lower courts' decisions. 111245 19 POINT III WITHOUT RETIREES' NAMES, EMPIRE CENTER STILL HAS ACCESS TO INFORMATION UNDER FOIL THAT ALLOWS IT TO ACCOMPLISH ITS PURPOSE Based on appellant's briefs, much of appellant's concern about retirement benefits appears to be the public's commitment and obligations to pay certain pensions to public employees upon retirement. Notwithstanding appellant's arguments on appeal, Empire Center and the public should be able to analyze and debate any such issue without retirees' names. Appellant maintains that the disclosure ofretirees' names is needed to "make informed judgments about government pensions, and generally keep a close eye on the specifics oftaxpayer expenditures"; or in other words, for the public to "perform their 'watchdog' role...." Appellant also states that "[t]he names of retirees drawing...pensions are needed to track pension obligations over time, and to analyze how the pension systems function." But pursuant to the FOIL requests here, appellant received information concerning retirees' last employer; cumulative years of service at retirement; the amount of retirement benefits; retirement date; and date of commencement of retirement system membership (SR. 18-19; CR. 21-22). Such information, which is made available on Empire Center's website, can allow the public to track pension obligations, reach informed judgments about pensions, and 111245 20 conduct an analysis ofthe pension system - all without retirees' names. Thus, the so called "watchdog" role can be accomplished without individuals' names. As both the NYS TRS and NYC TRS release detailed information about public pension benefits, in accordance with FOIL, pension information is not hidden but instead accessible to the public. Thus, it is a misnomer for appellant to call the non disclosure of retirees' names, which FOIL does not deem part of the public sphere, as the hiding of information especially where both the NYS TRS and NYC TRS informed appellant here that they were basing their actions on court precedent (SR. 19, 24; CR. 23, 27-28). Ultimately, if this Court upholds the lower courts' decisions and confirms the holding of New York Veteran Police Ass 'n, the public can continue to engage in meaningful analysis and debate about public pension programs, based on the breadth ofretirement information contained in the pension data accessible to the public under FOIL. Thus, appellant has not established a basis for breaking from existing precedent. 111245 21 CONCLlJSION For the foregoing reasons, this COllrt should affirm the decisions of the Appellatl! Division, Third Department, and Appellate Division, First Department. Dated: New York, New York December 16, 2013 Respectfully submitted, RICHARD E. CASAGRANDE Attorney for Amicus Curiae New York State United Teachers 52 Broadway, 9th Floor New York, NY 1 0004 Telephone: (212) 533-6300 Facsimile: (212) 228-9253 Email: kgross@nysutmaiLorg h- 1 t)/ By: e~ f _ ./-2-Z4--<2"",,-,. KEITH J. G1{.OSS Of Counsel TO: Andrew W. Klein, Esq. Clerk of the COlllt State of New York Court of Appeals 20 Eagle Street Albany, NY 12207-1095 Levine Sullivan Koch & Schulz, LLP Attn: David A. Schulz, Esq, Attorney for Appellant 321 Wt:st 44th Street, Suite 100 New York, NY 10036 (212) 850-6100 22 Eric T. Schiederman, Esq. Attorney General of the State of New York Attn: Jeffrey W. Lang, Esq. Attorney for Respondent New York State Teachers' Retirement System The Capitol Albany, New York 12224 (518) 474-3429 Michael A. Cardozo, Esq. Corporation Counsel of the City of New York Attn: Elizabeth 1. Freedman, Of Counsel Attorney for Respondent Teachers' Retirement System of the City of New York 100 Church Street New York, New York 10007 (212) 788-1026 111245 23