Subpoenas served on agencies not exempt from disclosure

From the Summer 2002 issue of The News Media & The Law, page 41.

The New York Court of Appeals in Albany unanimously held June 13 that subpoenas filed against state agencies and kept in agency files are not exempt from disclosure under the state’s Freedom of Information Law, rejecting claims that because courts and not agencies issue subpoenas they are court documents that cannot be reached by the FOIL.

John Riley, a reporter at Newsday, was looking into rumors of a series of improper personal and business dealings made officers of the Empire State Development Corp., a state agency that hands out subsidies and encourages economic development in New York.

The Manhattan District Attorney’s Office in New York served subpoenas on the agency while it was investigating some of the agency’s business dealings, especially those made by some of the corporation’s officers.

The investigations involved the propriety of bidding decisions to develop state lands and questions of political favoritism in the agency’s dealings. Part of the investigation focused on director Charles Gargano, who had in times past also headed up fundraising for governors Alfonse D’Amato and George Pataki. One of Gargano’s top aides, Paolo Palumbo, had been arrested and charged with taking bribes.

In November 1999, Riley sought copies of the subpoenas issued by the Manhattan D.A.’s Office that were in the possession of the Empire State Development Corp. Backed by the newspaper, Riley filed a FOIL request for the subpoenas hoping to get a fuller picture of how the district attorney’s investigation was expanding.

The request was denied.

Riley filed an internal appeal, which was denied again. The newspaper then sued the agency for access to the subpoena records.

“One of the reasons the newspaper pursued it as a legal case . . . . we thought — that separate and apart from Empire State — it would set an important and valuable precedent,” Riley said. “It gives you the capacity to keep track of which agency is being investigated by which enforcement agency.”

In the meantime, the Manhattan District Attorney’s Office closed its investigation in January 2001 without filing any criminal charges. A public announcement was made that the district attorney was no longer looking into Gargano’s involvement.

The trial court in New York City held in August 2000 that subpoenas are not exempt from disclosure because they are issued by the state district attorney’s office, an agency subject to the FOIL. But a mid-level appellate court in New York City reversed in May 2001, ruling that a subpoena is a mandate of the court, issued for the court, and is not subject to the FOIL because the judiciary is exempt from that law.

The New York Court of Appeals, the state’s highest court, rejected the appellate court’s analysis and held that the state development corporation is not part of the judiciary and is not exempt from the provisions of FOIL. The agency is required to release its copies of the subpoenas, regardless of whether subpoenas are issued by a court. The court rejected the development corporation’s argument that the records were court materials and exempt from disclosure.

The high court wrote that a record must fall squarely within a statutory exemption to disclosure if the government withholds it, and the government must prove that an exemption applies. The Empire State Development Corp. is a state agency subject to FOIL, it said. Since the agency has the subpoenas in its possession, in physical form, they are agency records subject to FOIL.

The Court of Appeals reinstated the trial court decision and fines.

The Reporters Committee for Freedom of the Press and several other news organizations joined a friend-of-the-court brief filed by the Investigative Reporters and Editors, Inc. in support of Newsday.

They argued that the mid-level appellate court erred in construing the “judiciary” exclusion from the FOIL too broadly and qualifying subpoenas under the exemption when they constitute records held or maintained by a public agency. They argued the appellate court’s statutory construction runs counter to previous Court of Appeal precedent and the legislative purpose of the FOIL. They also argued that the disclosure of records allows the public to keep public agencies accountable for their actions and also allows the people to monitor public business through the media through their exposure of waste, neglect and abuse.

“The purpose of FOIL . . . is to shed light on government decision making, which in turn both permits the electorate to make informed choices regarding governmental activities and facilities exposure of waste, negligence and abuse,” they wrote. (In the Matter of Newsday, Inc. v. Empire State Development Corporation) — MM