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 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-Appellee. 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-Appellee. BRIEF AMICUS CURIAE OF CITIZENS BUDGET COMMISSION AND CITIZENS UNION OF THE CITY OF NEW YORK IN SUPPORT OF APPELLANT Martin S. Kaufman Briscoe R. Smith ATLANTIC LEGAL FOUNDATION 2039 PALMER AVENUE, SUITE 104 LARCHMONT, NEW YORK 10543 Tel.: (914) 834-3322 Fax: (914) 833-1022 Date Completed: February 11, 2014 APL-2013-00167, APL-2013-00168 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 - THE NEW YORK STATE TEACHERS’ RETIREMENT SYSTEM, Respondent-Appellee. 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 - THE TEACHERS’ RETIREMENT SYSTEM OF THE CITY OF NEW YORK, Respondent-Appellee. DISCLOSURE STATEMENT Pursuant to 22 N.Y.C.R.R. 500.1(f), amici curiae state as follows: Citizens Budget Commission is a nonprofit corporation under Section 501(c)(3) of the Internal Revenue Code, and has no corporate parents, subsidiaries or affiliates. Citizens Union of the City of New York is a nonprofit corporation under Section 501(c)(3) of the Internal Revenue Code, and has no corporate parents, subsidiaries or affiliates. Larchmont, New York February 11, 2014 Martin S. Kaufman Martin S. Kaufman Atlantic Legal Foundation 2039 Palmer Avenue, Suite 104 Larchmont, New York 10543 Tel.: (914) 834-3322 Fax: (914) 833-1022 Attorneys for Amici Curiae Citizens Budget Commission and Citizens Union of the City of New York TABLE OF CONTENTS Page DISCLOSURE STATEMENT TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii INTEREST OF AMICI CURIAE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 I. The Names of Retired Government Employee-Pensioners Cannot Be Withheld Under FOIL.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 A. The Interpretation of Section 89(7) by the Courts Below Defeats FOIL’s Basic Purpose. . . . . . . . . . . . . . 8 B. The Interpretation of Section 89(7) by the Courts Below Violates Principles of Statutory Construction. . . . . . . . . . . . . 11 II. THE DECISION IN VETERAN POLICE IS NOT CONTROLLING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 A. Veteran Police Did Not Decide the Question Raised Here. . . 19 B. Even if Veteran Police Decided the Question Raised Here, It Did So Incorrectly and Should Be Overruled.. . . . . . . . . . . 20 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Certificate of Service -i- TABLE OF CASES AND AUTHORITIES Page Cases Bliss v. Bliss, 66 N.Y.2d 382, 389 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Broadnax v. Gonzalez, 2 N.Y.3d 148 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Capital Newspapers v. Burns, 67 N.Y.2d 562 (1986). . . . . . . . . . . . . . . . . . . . 9, 13 Capital Newspapers v. Whalen, 69 N.Y.2d 246, 252 (1987). . . . . . . . . . . . . . . . . 10 Castillo v. 711 Grp., Inc., 10 N.Y.3d 735 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . 14 Commonwealth of N. Mariana Islands v. Canadian Imperial Bank of Commerce, 21 N.Y.3d 55 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Direen Operating Corp. v. State Tax Commission, 46 A.D.2d 191, 361 N.Y.S.2d 7(3 Dep’t 1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12rd Empire Ctr. for N.Y. State Policy v. New York City Police Pension Fund, 88 A.D.3d 520, 930 N.Y.S.2d 576 (1st Dept. 2011), lv. dismissed 18 N.Y.3d 901 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Empire Center for New York State Policy v. New York State Teachers’ Retirement System, No. 1221-12 (Sup. Ct., Albany Cnty. 2012). . . . . . . . . . . . . . 6 Empire Center for New York State Policy v. New York State Teachers’ Retirement System, 103 A.D.3d 1009, 961 N.Y.S.2d 329 (3rd Dep't 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7, 18 Empire Center for New York State Policy v. Teachers ' Retirement System of the City of New York, No. 102055/12, 2012 N.Y. Misc. LEXIS 4078 (Sup. Ct., N.Y. Cnty. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Empire Center for New York State Policy v. Teachers’ Retirement System of the City of New York, 103 A.D.3d 593, 959 N.Y.S.2d 911 (1st Dep't 2013). . . 7 -ii- Encore Coll. Bookstores, Inc. v. Auxiliary Serv. Corp. of SUNY at Farmingdale, 87 N.Y.2d 410 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Fink v. Lefkowitz, 47 N.Y.2d 567 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Friedman v Connecticut Gen. Life Ins. Co., 9 N.Y.3d 105, 115 (2007). . . . . . 7, 16 Gould v. N.Y.C. Police Dep’t, 89 N.Y.2d 267 (1996).. . . . . . . . . . . . . . . . . . . . . . 10 In re Yolanda D., 88 N.Y.2d 790 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Matter of Albany Law School v. New York State Off. of Mental Retardation & Dev. Disabilities, 19 N.Y.3d 106 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 14 Matter of SIN, Inc. v Department of Fin. of City of N.Y., 71 N.Y.2d 616 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 14 Newsday, Inc. v. Empire State Dev. Corp., 98 N.Y.2d 359 (2002). . . . . . . . . . . . 10 New York Veteran Police Ass 'n v. New York City Police Dep't, 61 N.Y.2d 659 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Mobil Oil Corp., 48 N.Y.2d 192 (1979). . . . . . . . . . . . . . . . . . . . . . . . . 16 Rocovich v. Consol. Edison Co., 78 N.Y.2d 509 (1991). . . . . . . . . . . . . . . . . . . . 13 Tebbutt v. Virostek, 65 N.Y.2d (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Weston v. Sloan, 84 N.Y.2d 462 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Statutes McKinney's Cons. Laws of NY, Book 1, Statutes § 94. . . . . . . . . . . . . . . . . . . . . 14 McKinney's Cons. Laws of NY, Book 1, Statutes § 96. . . . . . . . . . . . . . . . . . . . . 15 McKinney's Cons. Laws of NY, Book 1, Statutes § 97. . . . . . . . . . . . . . . . . . . . . 16 McKinney's Cons. Laws of NY, Book 1, Statutes § 231. . . . . . . . . . . . . . . . . . . . 12 -iii- Public Officers Law §84. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9 Public Officers Law §87(2)(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8 Public Officers Law §89(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Other BLACK'S LAW DICTIONARY (7th ed. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Citizens Budget Commission, The First Priority in the New Year – Pension Reform, January 11, 2012, available at http://www.cbcny.org/sites/default/files/BRIEF_Pension_01112012.pdf. . . . . . . . 1 Citizens Budget Commission, A Reasonable Proposal: Sharing More of the Cost of Public Sector Pensions with Employees, February 16, 2012, available at http://www.cbcny.org/cbc-blogs/ blogs/reasonable-proposal-sharing-more-cost-public-sector- pensions-employees.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Merriam-Webster On-Line Dictionary, available at http://www.merriam-webster.com/dictionary/beneficiary. . . . . . . . . . . . . . . . . . . 15 New York State Committee on Open Government, FOIL-AO-7717 (May 19, 1993), available at http://www.dos.state.ny.us/ coog/ftext/f7717.htm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 New York State Committee on Open Government, FOIL-AO-8775 (Apr. 13, 1995), available at http://wwvv.dos.state.ny.us/coog/ ftext/f8775.htm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 New York State Committee on Open Government, FOIL-AO-9742 (Oct. 24, 1996), available at http://www.dos.state.ny.us/ coog/ftext/f9742.htm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 New York State Committee on Open Government, FOIL-AO-17955 (Jan. 8, 2010), available at http://docs.dos.ny.gov/coog/ftext/f17955.html. . . . 17 -iv- Interest of Amici Curiae Amici are civic good government organizations which support the appeal of Empire Center for New York State Policy (“Empire Center”) in these cases because the issue of the financial burden of government pensions and related issues threatens to adversely affect the economic viability of the State and City of New York and the welfare of New York citizens and taxpayers. The work of amici in examining and making sound and informed policy recommendations to address the growing coasts of public employee pensions will be adversely effected by the decisions below. Amici frequently report to the public on government spending and rely on open records laws in New York to gather data, analyze, and scrutinize the operation and use of public funds. Amici have an abiding interest in ensuring open access to pensioner names and in preventing government units at the state and local level from shielding information about the use of public funds from scrutiny. See, e.g., Citizens Budget Commission, The First Priority in the New Year – Pension Reform, January 11, 2012, available at http://www.cbcny.org/sites/default/files/BRIEF_Pension_01112012.pdf and Citizens Budget Commission, A Reasonable Proposal: Sharing More of the Cost of Public Sector Pensions with Employees, February 16, 2012, available at http://www.cbcny.org/cbc-blogs/blogs/reasonable-proposal-sharing-more-cost- public-sector-pensions-employees. -1- The Citizens Budget Commission (“CBC”), founded in 1932, is a nonpartisan, nonprofit civic organization devoted to influencing constructive change in the finances and services of New York City and New York State governments. The purpose of CBC is to promote sound New York City and New York State budget and management practices, and thereby to enhance New York's competitiveness as a place to live, work, and do business. With a reputation for independence and objective research, the CBC is an outspoken advocate for government reform – and unique in that it confines its advocacy to areas on which it has conducted research. Through its research, and by bringing together major stakeholders, CBC is a catalyst for positive change in such areas as budget reform, government finance, education, transportation, public authority reform, health care reform, and economic competitiveness. CBC’s research program is grounded in two fundamental principles: service to all citizens, rather than narrow special interests, should guide public officials and be the standard for evaluating performance; and public resources, financial and human, should not be wasted. Citizens Union of the City of New York (“Citizens Union” or “CU”) is an independent, nonpartisan organization dedicated to promoting good government and advancing political reform in the city and state of New York. It serves as a watchdog for the public interest and an advocate for the common good at City Hall and the State Capitol. Citizens Union was founded in 1897 to fight the corruption of Tammany -2- Hall and helped to elect New York City's first reform mayor, Seth Low, in 1901. Over the years Citizens Union has spearheaded efforts for campaign finance reform, historic preservation, improved voting procedures, New York City Charter revisions, home rule for New York City, and proportional representation. Today, it works to ensure fair elections, clean campaigns, and open and effective government that is accountable to the citizens of the City of New York. -3- QUESTIONS PRESENTED 1. Does an exception provided in Section 89(7) of the Public Officers Law (sometimes referred to as the “Freedom of Information Law,” which exempts from mandatory public disclosure (a) both the name and home address of a “beneficiary of a public employees' retirement system,” but (b) only the home address of a “retiree of a public employees' retirement system,” permit a public pension fund to withhold the names of all retirees receiving public pensions? The courts below answered this question "yes." State Retirement System Record (“SR”) at 48-50; City Retirement System Record (“CR”) at 43-44. 2. Does Section 87(2)(b) of the Freedom of Information Law, which exempts from mandatory public disclosure information that would constitute an “unwarranted invasion of personal privacy,” permit a public pension fund to withhold the names of retirees drawing taxpayer-funded pensions? The Supreme Court, New York County, answered this question "yes." CR. 8-10. The question was not reached by Supreme Court, Albany County or by the Appellate Division First or the Appellate Division Third Department. Amici will address only Question 1. -4- PRELIMINARY STATEMENT This consolidated appeal involves the scope of New York’s Freedom of Information Law, Pub. Off. Law § 89(7) , as drafted by the legislature and as1 interpreted by appellate courts, in light of New York Veteran Police Ass 'n v. New York City Police Dep't, 61 N.Y.2d 659 (1983). Amici submit that Section 89(7) of the law should be read as written, given its plain meaning to require the disclosure of names, but not home addresses, of retirees of a public employees’ retirement system, that the 1983 ruling in N.Y. Veteran Police, does not require a contrary result and the disclosure of public retirees’ names is not an unwarranted invasion of privacy. The court should reverse the decisions appealed from. STATEMENT OF FACTS On January 9, 2012, the Empire Center for New York State Policy (“Empire Center” or “Petitioner”) requested that New York State Teachers’ Retirement System (“State Retirement System”) and the Teachers’ Retirement System of the City of New York (“City Retirement System”) (collectively the “retirement systems”) to provide information about all retired members of the two retirement systems: their names, last employers, cumulative years of service at retirement, gross retirement benefits, retirement dates, and membership dates. (SR Record at 12, Petition at ¶5; CR Record Public Officials Law, §§84, et seq. is sometimes referred to herein as “FOIL.”1 -5- at 15, Petition at ¶5.) Both retirement systems refused to provide the names of their retirees. SR. 19-20; CR. 14, 22-24. Empire Center exhausted available administrative remedies by taking administrative appeals, (SR. 21-22; CR. 15, 25-26), which were denied (SR. 23-26; CR. 15, 27-28). In March, 2012, the Empire Center filed petitions pursuant to Article 78 of the CPLR challenging the retirement systems’ refusal to disclose the names of retirees, while disclosing a number of other documents and information responsive to the Empire Center's request for information pursuant to FOIL. (See SR at 11-26; CR at 14-20.) On May 18, 2012, Justice Christopher E. Cahill of Supreme Court, Albany County, issued a decision and order denying the Article 78 petition filed against the State Retirement System. (Empire Center for New York State Policy v. New York State Teachers’ Retirement System, No. 1221-12 (Sup. Ct., Albany Cnty. 2012) SR at 5-8.) On May 31, 2012, the Empire Center appealed Justice Cahill's decision to the Appellate Division, Third Department. (SR at 3.) On February 21, 2013, the Appellate Division, Third Department affirmed Supreme Court's decision dismissing the petition filed against the State Retirement System. (Empire Center for New York -6- State Policy v. New York State Teachers’ Retirement System, 103 A.D.3d 1009, 961 N.Y.S.2d 329 (3rd Dep't 2013) SR at 48-50.)2 On August 21, 2012, Justice Michael D. Stallman of Supreme Court, New York County, issued a decision and order denying the Article 78 petition filed against the City Retirement System. (Empire Center for New York State Policy v. Teachers ' Retirement System of the City of New York, No. 102055/12, 2012 N.Y. Misc. LEXIS 4078 (Sup. Ct., N.Y. Cnty. 2012) (CR at 5-10.) On September 17, 2012, the Empire Center appealed Judge Stallman's decision to the Appellate Division, First Department. (CR at 3.) On February 28, 2013, the Appellate Division, First Department affirmed Justice Stallman’s dismissal of the petition. (Empire Center for New York State Policy v. Teachers’ Retirement System of the City of New York, 103 A.D.3d 593, 959 N.Y.S.2d 911 (1st Dep't 2013) (CR at 43-44.)3 The Third Department observed that “Well-settled principles of statutory construction lend2 support to the interpretation advanced by petitioner (see generally Matter of Albany Law School v New York State Off. of Mental Retardation & Dev. Disabilities, 19 NY3d 106, 120 [2012]; Friedman v Connecticut Gen. Life Ins. Co., 9 NY3d 105, 115 [2007]; Matter of SIN, Inc. v Department of Fin. of City of N.Y., 71 NY2d 616, 621 [1988])” (emphasis supplied) but that court felt “bound by the Court of Appeals' decision in Matter of New York Veteran Police Assn. v New York City Police Dept. Art. I Pension Fund (61 NY2d 659 [1983]), wherein the Court interpreted Public Officers Law § 89 (7) as exempting from disclosure both the names and home addresses of retirees of a public employees' retirement system.” The Third Department wrongly read the Veteran Police decision to hold that Section 89(7) exempts from disclosure “both the names and home addresses of retirees of a public employees' retirement system.” The First Department, in a curt opinion consisting of a mere two paragraphs relied on its3 earlier decision in Empire Ctr. for N.Y. State Policy v. New York City Police Pension Fund, 88 A.D.3d 520, 930 N.Y.S.2d 576 [1st Dept. 2011], lv. dismissed 18 N.Y.3d 901, 940 N.Y.S.2d 209, 963 N.E.2d 786 [2012] ), “which followed Matter of New York Veteran Police Assn. v. New York City Police Dept. Art. I Pension Fund, 61 N.Y.2d 659, 472 N.Y.S.2d 85, 460 N.E.2d 226 (1983).” (continued...) -7- On June 26, 2013, this Court granted the Empire Center's motions for leave to appeal in both cases. (SR at 47; CR at 42.) ARGUMENT I. THE NAMES OF RETIRED GOVERNMENT EMPLOYEE- PENSIONERS CANNOT BE WITHHELD UNDER FOIL The interpretation of Section 89(7) by the courts below is incorrect because those decisions (1) negate the purpose of FOIL and the principle that FOIL exemptions are to be narrowly construed to fulfill the statute's objective; (2) contravene principles of statutory construction; and (3) are inconsistent with case law precedent. Contrary to the decisions below and respondents’ arguments, the crabbed reading of Section 89(7) is not mandated by New York Veteran Police Ass 'n v. New York City Police Dep't, 61 N.Y.2d 659 (1983) (“Veteran Police”). A. The Interpretation of Section 89(7) by the Courts Below Defeats FOIL's Basic Purpose When enacting FOIL, the Legislature stressed the critical importance of the policy of disclosure embraced by the statute, finding that: [A] free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental (...continued)3 The First Department did not address the alternate theory that the names of retirees are exempt from disclosure under Section 87(2)(b). -8- actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government. . . .**** FOIL §84. The people's right to see how government operates and to review the documents and considerations leading to legislation, regulations, and other governmental determinations is basic to our society. FOIL §84. 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); see also Capital Newspapers v. Burns, 67 N.Y.2d 562, 565 (1986) (emphasizing the legislature’s “strong commitment to open government and public accountability”). FOIL is intended to ensure that “the electorate [has] sufficient information to ‘make intelligent, informed choices with respect to both the direction and scope of governmental activities’” and – of particular relevance here – to be “an effective tool for exposing waste, negligence and abuse on the part of government officers.” Burns, 67 N.Y.2d at 566; Encore Coll. Bookstores, Inc. v. Auxiliary Serv. Corp. of SUNY at Farmingdale, 87 N.Y.2d 410, 416 (1995). This4 Informing the public about the expenditure of taxpayer funds is a core purpose of FOIL. 4 State and local governments spend billions of dollars annually to fund public employee pensions. Public employee pensions are a major cost of government, funded by tax dollars which must be diverted from providing services to citizens, impacting the state=s and localities’economies, and thus are an issue of great importance to the public. Disclosure of the type of information Empire Center=s FOIL requests at issue here is necessary to the ongoing public debate about government Informing the public about the expenditure of taxpayer funds is a core purpose of FOIL (continued...) -9- Court has recognized the importance of “an expansive interpretation” of FOIL’s disclosure obligations (Newsday, Inc. v. Empire State Dev. Corp., 98 N.Y.2d 359, 361-62 (2002) (citations omitted)). As this Court’s decisions have made clear, see, e.g., Gould v. N.Y.C. Police Dep’t, 89 N.Y.2d 267, 275 (1996); Weston v. Sloan, 84 N.Y.2d 462 (1994) (stressing the importance of enforcing FOIL’s disclosure requirements); Capital Newspapers v. Whalen, 69 N.Y.2d 246, 252 (1987) (FOIL's disclosure objective is an “important public policy.”) The decisions of the courts below in these cases defeat the basic objectives of the FOIL. Section 89(7), the specific section at issue, provides, in relevant part: Nothing in this article shall require the disclosure of the home address of an officer or employee, former officer or employee, or of a retiree of a public employees’ retirement system; nor shall anything in this article require the disclosure of the name or home address of a beneficiary of a public employees’ retirement system or of an applicant for appointment to public employment. . . . Section 89(7) is an exception to the broad disclosure mandate of FOIL, and should be narrowly construed to promote the overarching purpose of FOIL, public (...continued)4 The names of retirees receiving government pensions are one type of data used to track pension obligations over time, to analyze how the pension systems function, and to expose cases of abuse, such “double-dippers” who collect pension benefits and a public salary at the same time, “salary spiking” and “pension padding.” See Empire Center Brief at 18-19. -10- access to government records and transparency. If the interpretation of Section 89(7) by the courts below is permitted to stand, the press and good government and public policy groups such as amici cannot perform effectively as “watchdogs” and inform the public whether billions of dollars of taxpayer funds are being spent properly or wisely. This result is manifestly contrary to the purposes of FOIL and is particularly troubling given taxpayers’ justified concerns over the fiscal issues facing state and local government. The application of Section 89(7) by the courts below in this case defeats the legislature’s intent in enacting FOIL to foster open government and public debate about public policy. B. The Interpretation of Section 89(7) by the Courts Below Violates Principles of Statutory Construction Section 89(7) is an exemption to the general requirement that public records be disclosed. It exempts from disclosure the “home address of an officer or employee, former officer or employee, or of a retiree” of a public employee retirement system. Section 89(7) provides a separate exemption for “the name and home address” of a “beneficiary” of a public employee retirement system. By its wording and structure, there are different and distinct exemptions for retirees and beneficiaries. -11- The courts below erroneously read the terms “retiree” and “beneficiary” to be synonymous. This interpretation violates the fundamental principle of statutory construction that a law should not be construed to render legislative language superfluous. See, McKinney's Consolidated Laws of New York Annotated, Statutes, § 231. Every word to be given effect: In the construction of a statute, meaning and effect should be given to all its language, if possible, and words are not to be rejected as superfluous when it is practicable to give to each a distinct and separate meaning. The Comment to §231 explains: In accordance with the established canon of interpretation of statutes that all parts of an act are to be construed together. It is not to be supposed that the Legislature will deliberately place words or phrases in a statute without any purpose in view. On the contrary, it is said that in the attempt to ascertain the intention of the legislature, it is a just rule, always to be observed, that the court shall assume that every provision of the statute was intended to serve some useful purpose, and it is broadly held that every word, phrase, clause and paragraph must be presumed to have meaning and to have been inserted in a statute for a purpose. (Citations omitted). Thus, in construing a statute, no part thereof is to be considered meaningless unless that conclusion is inevitable, Direen Operating Corp. v. State Tax Commission, 46 A.D.2d 191, 361 N.Y.S.2d 7(3 Dep’t 1974) and words in statutesrd are not to be rejected as superfluous when it is practicable to give to each a distinct and separate meaning. Bliss v. Bliss, 66 N.Y.2d 382, 389 (1985) (emphasis added); -12- see also In re Yolanda D., 88 N.Y.2d 790, 794-95 (1996) (statutes may not be interpreted to render any part superfluous); Rocovich v. Consol. Edison Co., 78 N.Y.2d 509, 515 (1991) (“a statutory construction which renders one part meaningless should be avoided” (citations omitted)). The distinction between “retirees” and “beneficiaries” is not to be presumed to be the result of haphazard drafting. “Beneficiaries” (and applicants for appointment to public employment) have more privacy protection from public disclosure under the statute than officers, employees and retirees. There is logic behind the distinction: “retirees” (i.e. former officers or employees), like current officers or employees, have or have had a direct employment relationship with the State or the City and made a conscious choice to become a public servant. “[T]he acceptance of public employment carries with it a realization that certain facts relating to such employment must be public knowledge. This includes, for example, a public employee's name, public office address, title and salary.” Burns, 109 A.D.2d 92, 94 (3d Dep't 1985), aff'd, 67 N.Y.2d 562 (1986)), whereas “beneficiaries” such as windows or children of officers, employees or retirees and applicants for appointment have at best a much more remote relationship with public employment and the retirement system. The inclusion of retirees in the second clause of Section 89(7), by reason of a strained reading of “beneficiary,” makes the first clause superfluous. Respondents contend that the reference to “retirees” should be disregarded because retirees can -13- also be said to be “beneficiaries.” This construction would rewrite the statute and would be illogical. In addition, the purpose of statutory construction by the courts is to effect the legislature’s intent, which is to be “ascertained from words and language used . . . generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction.” McKinney’s, Statutes § 94; see also, Matter of Albany Law School v New York State Off. of Mental Retardation & Dev., 19 N.Y.3d 106, 120 (2012): In matters of statutory interpretation, our primary consideration is to discern and give effect to the Legislature's intention. As we have repeatedly stated, the text of a provision “is the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning”. Additionally, we should inquire “into the spirit and purpose of the legislation, which requires examination of the statutory context of the provision as well as its legislative history.” Finally, it is well settled that a statute must be construed as a whole and that its various sections must be considered with reference to one another. See, also, e.g., Commonwealth of N. Mariana Islands v. Canadian Imperial Bank of Commerce, 21 N.Y.3d 55, 60 (2013) (courts must construe statutes “so as to give effect to the plain meaning of the words used”) (citations omitted); 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); Matter of SIN, Inc. v Department of Fin. of City of N.Y., 71 N.Y.2d 616 (1988) (“[W]here the language used in a . . . statute is neither special nor technical, -14- but consists of common words of clear import, there is little reason to defer to a contrary interpretation given by the administrative agency.”) Here, the statutory5 language is unambiguous and nontechnical. The interpretation given to Section 89(7) by the courts below and advocated by Respondents-Appellees violates this principle that statutory language should be given its plain and ordinary meaning. Moreover, “[a] basic consideration in the interpretation of a statute is the general spirit and purpose underlying its enactment,” McKinney’s, Statutes § 96, and a “statute . . . is to be construed as a whole, and all parts . . . are to be read and BLACK'S LAW DICTIONARY (7th ed. 1999), defines a “beneficiary” as “[a] person who5 is designated to benefit from an appointment, disposition, or assignment (as in a will, insurance policy, etc.); one designated to receive something as a result of a legal arrangement or instruction.” (emphasis supplied). The Merriam-Webster On-Line Dictionary defines beneficiary as “a person, organization, etc., that receives money or property when someone dies” or “the person designated to receive the income of a trust estate” or “the person named (as in an insurance policy) to receive proceeds or benefits.” http://www.merriam-webster.com/dictionary/beneficiary. The New York State Teachers’ Retirement System itself has a form for “Designation of Beneficiary,” available online at http://www.nystrs.org/main/forms/net11-4.pdf; It is clear from that form that a “beneficiary” is a person other than the member of the retirement plan. The “Glossary of Benefit Terms” section of NYS-TRS’s website unambiguously defines “beneficiary” in the ordinary dictionary 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.” See http://www.nystrs.org/main/glossary.html. The Teachers’ Retirement System of New York City has forms for designation or change of beneficiary, and it is likewise clear from those forms that a “beneficiary” is someone other than the “In Service Member” or the “Retiree.” See https://www.trsnyc.org/WebContent/tools/pdf/EN6.pdf. and https://www.trsnyc.org/trsweb/tools/beneficiaryDesignationsRet.html. -15- construed together to determine the legislative intent.” McKinney’s, Statutes § 97. See Friedman v Connecticut Gen. Life Ins. Co., 9 N.Y.3d 105, 115 (2007) “A court must consider a statute as a whole, reading and construing all parts of an act together to determine legislative intent,” , and “[give] effect and meaning . . . to the entire statute and every part and word thereof”); see also People v. Mobil Oil Corp., 48 N.Y. 2d 192, 199 (1979) (“It is a well-settled principle of statutory construction that a statute or ordinance must be construed as a whole and that its various sections must be considered together and with reference to each other”). We respectfully submit that the courts below ignored or misapplied these basic rules of statutory construction. By its ordinary meaning, and in context, Section 89(7) addresses two separate categories of persons: (1) employees, former employees and retirees, whose names are not exempt from disclosure, and (2) their beneficiaries (i.e., the persons designated to receive benefits in the event of their death), whose names are exempt from disclosure. Section 89(7) was understood to make a distinction between retirees and beneficiaries. The New York State Committee on Open Government – the state agency responsible for “overseeing and advising with respect to the Freedom of Information Law” and with the greatest expertise in its construction – has stated in numerous opinions that Section 89(7) treats “beneficiaries” differently from “retirees” -16- for purposes of FOIL disclosure requirements: “[T]he 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.” Committee on Open Government, FOIL-AO-7717 (May 19, 1993), available at http://www.dos.state.ny.us/ coog/ftext/f7717.htm; see also FOIL-AO-8775 (Apr. 13, 1995), available at http://wwvv.dos.state.ny.us/coog/ ftext/f8775.htm (“names and titles” of members of retirement systems are subject to disclosure); FOIL-AO-9742 (Oct. 24, 1996), available at http://www.dos.state.ny.us/ coog/ftext/f9742.htm (disclosure of “all retired pensioned employees” is required); FOIL-AO-17955 (Jan. 8, 2010), available at http://www.dos.state.ny.us/coog/ ftext/f17955.html (“a beneficiary is a person designated by a public employee to receive pension benefits in the event of the employee’s death” ).6 This opinion is particularly pertinent:6 [A] logical interpretation of the descriptions of categories of persons whose home addresses are protected by subsection (7) is as follows: “an officer or employee” is a current public employee, a “former officer or employee” is someone who has left public service, and “a retiree of a public employees’ retirement system” is a retired public employee. Those whose home addresses and names are protected by subsection (7) include “a beneficiary of a public employees’ retirement system”, or a person named as a beneficiary of a retired public employee, and “an applicant for appointment to public employment”, or a person who applied for a position of public employment. In consideration of that interpretation, in my opinion it would be illogical for an agency to construe subsection (7) as protecting a retiree’s home address in the first instance, and the same retiree’s name and home address in the second instance. Based on the progression of the language of subsection (7) it is clear that a beneficiary is a person designated by a public employee to receive pension benefits (continued...) -17- As Empire Center persuasively shows, public employee pension fund systems across the state – including both respondents here – had routinely provided the names of their retirees and the amounts of their pensions in response to FOIL requests. See Empire Center Brief at 13. II. THE DECISION IN VETERAN POLICE IS NOT CONTROLLING The courts below because they read this Court's decision in Veteran Police as exempting the names of retirees from disclosure. Indeed, the Appellate Division, Third Department would have decided the case in favor of Empire Center but for its belief that Veteran Police mandated a different result: Well-settled principles of statutory construction lend support to the interpretation advanced by petitioner. Yet we are bound by the Court of Appeals' decision in Matter of New York Veteran Police Assn. v New York City Police Dept. Art. I Pension Fund (61 NY2d 659 [1983]), wherein the Court interpreted Public Officers Law § 89 (7) as exempting from disclosure both the names and home addresses of retirees of a public employees' retirement system. Empire Center for New York State Policy v. New York State Teachers’ Retirement System, 103 A.D.3d 1009, 1010, 961 N.Y.S.2d 329, 330 (3rd Dep't 2013) (citations omitted). (...continued)6 in the event of the employee’s death. In my opinion, it is illogical to apply a dictionary definition of the word “beneficiary” to the language of the subsection, and the Fund has no basis to deny access to the names of those persons who are retired from public employment and receiving pension benefits. -18- The courts below are not so constrained by Veteran Police. A. Veteran Police Did Not Decide the Question Raised Here Empire Center demonstrates that the petitioner in Veteran Police never sought to obtain the names, without addresses, of retirees (see Empire Brief at 13-15), and nothing in the record of, nor the Court’s opinion in, Veteran Police suggests that the issue presented here was considered or addressed (see Empire Reply Brief at 13-14). This Court then held, without significant discussion, that the FOIL request in that case, seeking both the “names and addresses” of police “retirees,” could properly be rejected under the new Section 89(7). The parties in Veteran Police did not address, and did not brief, and the Court did not address, the separate provisions for a “retiree” and a “beneficiary” in Section 89(7), and there was no need to do so because the FOIL request at issue in that case sought both the names and the addresses of retirees, and that request could plainly be denied under the newly enacted Section 89(7). A fresh reading of the record and decisions in Veteran Police shows that the Court of Appeals did not consider whether N.Y.P.D. was permitted to withhold retiree names alone (without addresses), as Empire Center seeks here, because the police association did not seek only names. Veteran Police did not decide the issue presented here and is not controlling. -19- B. Even If Veteran Police Decided the Issue Raised Here, It Did So Incorrectly and Should Be Overruled The parties in Veteran Police did not extensively brief the canons of statutory interpretation, which, we respectfully submit, require a holding that Section 89(7) does not exempt from disclosure the names of retirees, nor did the Court in that case construe the precise statutory language at issue here. This Court has overruled a prior holding because it was, on further consideration, ill-advised, and now acknowledged to be a mistake. See, e.g., Broadnax v. Gonzalez, 2 N.Y.3d 148 (2004), overruling Tebbutt v. Virostek, 65 N.Y.2d (1985) (“While we are well aware of the importance of precedent, Tebbutt has failed to withstand the cold light of logic and experience. To be sure, line drawing is often an inevitable element of the common-law process, but the imperative to define the scope of a duty – the need to draw difficult distinctions – does not justify our clinging to a line that has proved indefensible.” 2 N.Y.3d at 156.) The scope of Section 89(7) is uncertain due to the cryptic N.Y. Veteran opinion which the appellate division panels believed they were compelled to follow. As Empire Center points out, Veteran Police has recently been used to withhold names of retirees and the cases so holding are subject to this Court’s decision in these appeals. See Empire Center Brief at 13. -20- The Court should take this opportunity to revisit Section 89(7) and give it its natural, logical meaning for guidance of those seeking and responding to FOIL disclosure requests. As with Tebbutt, Veteran Police fails to withstand “the cold light of logic” and experience has shown that it’s cryptic language is being used to defeat an essential purpose of the Freedom of Information Law. CONCLUSION The decisions below misapply Section 89(7), misread Veteran Police, and undermine fundamental State policy embodied in FOIL The holdings are incorrect and should be reversed. Dated: February 11, 2014 Larchmont, New York Respectfully submitted ATLANTIC LEGAL FOUNDATION Martin S. Kaufman Martin S. Kaufman 2039 Palmer Avenue, Suite 104 Larchmont, New York 10543 Tel.: (914) 834-3322 Fax: (914) 833-1022 Attorneys for Amici Curiae Citizens Budget Commission and Citizens Union of the City of New York Of Counsel: Briscoe R. Smith -21-