N.Y. judge rules for partial release of ethics investigation records

A state trial court judge in Westchester County ruled this week that a Journal News reporter was entitled to certain records related to an ethics investigation of a former White Plains mayor. The ruling reaffirmed that the disclosure requirements of the state open records law preempt a confidentiality provision for ethics investigations records in a local ordinance.

In The Journal News v. City of White Plains, et al., the City of White Plains Board of Ethics partially denied the reporter’s request for records related to its investigation of former Mayor Adam Bradley. Allegations of conflicts of interest and favoritism arose when Bradley rented an apartment – allegedly below market price – from a developer who was had business before the city. Bradley resigned last year after the board issued a formal statement of charges, at which point the proceedings ceased for lack of jurisdiction.

“The situation arising from Mayor Bradley’s resignation . . . was highly controversial,” said attorney Mark Fowler, who represented the newspaper. “We feel that the public was entitled to know as much as the law permits concerning the results and the activities of the ethics investigation.”

The city withheld most of the investigation records, claiming a confidentiality clause for such records in the White Plains Code of Ethics shielded them from release.

The court disagreed, noting in its opinion that while an exemption in the state open records law allows an agency to withhold records that are exempted by state or federal laws, “[a] local agency, by contrast, cannot immunize a document from disclosure under state law by designating it as confidential.”

“That’s a very useful decision to the public or the press . . . to reinforce the notion that the controlling authority here is the state Freedom of Information Law, and localities can’t seek to impose greater levels of confidentiality than the state law allows,” said Fowler.

The court also held the city properly withheld some records under a state law exemption for records that, if released, would result in an unwarranted invasion of personal privacy that outweighed the public interest in disclosure. For instance, the mayor’s privacy interest in personal financial documents obtained from him during the course of the investigation such as his canceled checks and bills – assuming they fell within the scope of the open records law – outweighed the public interest in their release, as they were not relevant to the mayor’s performance of his duties.

However, the court held the city failed to explain how records such as a calendar documenting the mayor’s official duties and/or public schedule would invade his privacy, and the public was therefore entitled to it.

The city successfully argued that it could withhold communications between board members under a state law exemption that protects records related to an agency’s deliberative process – pre-decisional documents that reflect advisory opinions, deliberations, and recommendations. The communications were “opinions, ideas, or advice exchanged” by board members in the process of reaching a decision on whether to formally charge the mayor, the court ruled.

However, the court held that the deliberative process privilege did not permit the withholding of a statement of the formal charges against the mayor. The statement only reflected the board’s determination after the completed investigation, and, furthermore, the Code of Ethics also established a presumption of openness in statements of formal charges after the passage of 30 days from when the charges were served, the court noted.

Additionally, a document stating the board’s decision to dismiss the mayor’s case for lack of jurisdiction – which was filed with the city clerk and attached to a court document submitted by the city – should be released, the court ruled, as it had already been made public.

Fowler said the court “took great care” in examining the 400 pages of documents at issue.

“It’s apparent from the decision [the judge] looked at all of them and made a document-by-document determination, which is required under the Freedom of Information Law,” Fowler said. He said this process permits the court to “make its own determination” of whether exemptions apply, “rather than accepting a characterization.”

Fowler does not know if the city plans to appeal the ruling. Counsel for the city could not be reached for comment.

Related Reporters Committee resources:

· New York – Open Government Guide: 2. Discussion of each exemption.