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Center files motion for leave to appeal in FOIL lawsuit

Major news media support Empire Center in pension disclosure case

December 15, 2011

Contact: (518) 434-3100


The Empire Center for New York State policy has asked the state’s highest court to review an appellate decision that would hide public information from public view. The Center’s efforts have been bolstered by an amicus brief filed on behalf of the state’s leading newspapers.


In an October 18 ruling, the Appellate Division of state Supreme Court in Manhattan denied the Empire Center’s appeal of a lower court decision in favor of the New York City Police Pension Fund, which had refused to comply with the Empire Center’s Freedom of Information Law (FOIL) request for a list of the fund’s pension recipients. 


The Albany-based Empire Center, a project of the Manhattan Institute for Policy Research, had sought the police pension information for inclusion in a searchable online database at its transparency website,  Such information had been shared by all of the city and state pension funds in the past.  However, since last December’s lower court ruling, other city pension funds have also begun to restrict access to their pensioners’ identities, the Center noted.


The Empire Center’s motion says the lower court rulings were, “plainly wrong on the law ... and if not corrected by this Court will have a significant negative impact far beyond the denial of the specific FOIL request at issue in this case.”


Despite the serious and significant legal issues raised, the Appellate Division’s decision was just three sentences long.  It cited a 1983 Court of Appeals opinion in Matter of New York Veteran Police Assn., a case involving the city pension fund’s denial of a FOIL request from a non-profit organization that was seeking access to both the names and addresses of retired city police officers.  As the memo explains, the Appellate Division’s decision is, “not supported by the Veteran Police opinion itself, the express statutory language of the exemption, or its consistent, contrary application for the past 28 years.”


The brief filed on behalf of New York media organizations agreed, calling the Appellate Division ruling, “clearly wrong on every level ... inconsistent with the language of FOIL and canons of statutory construction, decades of precedent, and public policy.”


“This ruling, and all of its negative implications, goes against New York’s longstanding policy of inclusive disclosure – a policy that is rooted in one of the strongest Freedom of Information Laws in the country,” said Tim Hoefer, director of the Empire Center.


The amicus brief supporting the Empire Center was drafted by attorneys of the Hearst Corporation, and filed on behalf of the Albany Times Union, the Buffalo News,The Citizen of Auburn, Gannett Co. Inc., the Hearst Corp., the New York Daily News, the New York Post, the New York Press Association, the New York Times Co., Newsday LLC, and the Utica Observer Dispatch.


The motion for leave to appeal can be downloaded here.

The amicus brief can be downloaded here.