Center Weighs Appeal Of Ruling Restricting Public Access To Public Pension Information
October 18, 2011
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Contact: Tim Hoefer
(518) 434-3100

The Empire Center for New York State Policy says it will ask the state’s highest court to review an appellate decision that would, for the first time in New York’s history, restrict public access to the identities of public pension recipients.

In a unanimous decision, the Appellate Division of state Supreme Court in Manhattan today 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.

“If allowed to stand, this decision will be a massive blow to open government and transparency in New York,” said Timothy Hoefer, director of the Albany-based Empire Center.

“Given mounting public concern over public pensions, this couldn’t come at a worse time.” Hoefer added. “As taxpayer costs for public pensions continue to skyrocket, the Appellate Division is reversing decades of precedent by saying that taxpayers have no right to know who is collecting pension benefits.”

The 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, www.SeeThroughNY.net. Such information had been shared by all of the pension funds in the past. However, since the December lower court ruling, other city pension funds have also begun to restrict access to their pensioners’ identities, Hoefer said.

The Appellate Division’s decision was a mere three sentences long. It cited a 1983 Court of Appeals opinion in Matter of New York Veteran Police Assn., a case involving denial of a FOIL request by a non-profit organization that was seeking access to both the names and addresses of retired city police officers. Although the Empire Center was requesting names only, not addresses, the Appellate Division said the Center had offered “nopersuasive argument distinguishing its FOIL request from that in Matter of New York Veteran Police Assn.”

“We think the difference between a FOIL request for names alone and a request for both names and addresses is crystal clear, and we underscored that point in our legal briefs and argument before the court,” Hoefer said. “Like public payrolls, the names of individuals receiving benefits from taxpayer-backed pension funds have always been treated as public information in New York. Until now.”

Decision of the Appellate Division, First Department:

The Empire Center for New York State Policy, etc., Petitioner-Appellant,
v
New York City Police Pension Fund, Respondent-Respondent.

Levine Sullivan Koch & Schulz, LLP, New York (David A.
Schulz of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York
(Elizabeth I. Freedman of counsel), for respondent.

Judgment, Supreme Court, New York County (Carol E. Huff, J. - INDEX. No. 105839/2010)), entered December 30, 2010, denying the petition for an order directing respondent to comply with petitioner's Freedom of Information Law (FOIL) request for the names of all respondent's retired members, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The petition was properly denied. In Matter of New York Veteran Police Assn. v New York City Police Dept. Art. I Pension Fund (61 NY2d 659 [1983]), the Court of Appeals held that Public Officers Law § 89(7) exempts from disclosure both the names and addresses of retirees of the New York City Police Department receiving pensions and annuities. Thus, respondent correctly denied petitioner's FOIL request seeking the names of its retired members. Petitioner offers no persuasive argument distinguishing its FOIL request from that in Matter of New York Veteran Police Assn.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 18, 2011
CLERK