The New York State Court of Appeals doesn’t have to take cases, and rarely does when lower courts, including two Appellate Division courts, have agreed in their decisions — and unanimously at that. So it’s encouraging that the high court has announced it will review an important freedom of information case, one that has been wrongly decided by those lower courts.
The case involves pension information sought by the fiscal watchdog the Empire Center, which wants to post it on its website SeeThroughNY.net. The information is simple: the name and amount of pension for retired government employees, including state and local workers, teachers, police and firefighters.
This information has been routinely made available in the past, and rightly so because taxpayers pay for the pensions and have a right to know how their money is spent. But it became much easier for watchdog groups and the news media to find, track and analyze since the Empire Center started putting it online in 2008. Among other things, the site has helped reveal the growing number of retirees receiving six-figure pensions and seemingly healthy individuals with disability pensions.
At first, all five New York City and three state pension funds cooperated and gave the Empire Center the information it sought under the Freedom of Information Law, which has a presumption of openness when it comes to public records and makes no exception for pension payments to retirees. But in 2010 the New York City police pension fund refused to provide it on privacy grounds.
The state Public Officer’s Law does consider privacy, but makes a clear distinction between retirees and beneficiaries (surviving spouses and children). It allows only the address of a retiree to be withheld, while allowing the address and name of a beneficiary to be withheld. This recognizes that the legitimate public interest is in knowing the retiree’s name and amount of pension, not where he lives. And it recognizes that the beneficiary was not on the public payroll and therefore has a higher privacy expectation.
Based on this law, the courts should have ruled in the Empire Center’s favor. But they didn’t, ignoring the law’s explicit distinctions and the long-standing meaning of beneficiary, and treating the two groups as if they were one and the same. The appellate courts relied on a 1983 Court of Appeals decision that said retirees’ names and addresses could be kept from a police fraternal group that wanted them for solicitation and membership drives. But the Empire Center’s FOIL request is different: It’s for a public purpose, and does not seek addresses.
For the past two years, during which time the other New York City pension funds and the New York State Teachers’ Retirement Fund have all stopped providing the information, there has been proposed state legislation to clarify the law (which really shouldn’t need clarifying). Last year a bill passed the Assembly, but never got to a floor vote in the Senate. This year the Senate didn’t even have a bill. So it's now up to the Court of Appeals to remind legislators what they intended in the first place, and what good government and public policy requires.