NY Court Orders Disclosure Of Ethics Probe against Mayor DiBlasio

New York Times v City of New York Office of the Mayor, 2020 NY Slip Op 50035(U) (Supreme Court, N.Y. County, 01/15/2020)

Ruling against Mayor DiBlasio in his attempt to keep secret the findings of an ethics panel that looked into his fundraising, the New York State Supreme Court ruled that the Mayor must turn over the documents demanded by the New York Times in a FOIL request.

The Times demanded disclosure of a letter sent to the Mayor by New York City’s Conflict of Interest Board. The letter was the end result of an investigation originally opened by the City’s Department of Investigation (“DOI”) in 2016, which looked into the Mayor’s fundraising for Campaign for One New York, a nonprofit group founded in 2013 to advance the Mayor’s political career . The DOI found that the Mayor had potentially violated conflicts of interest laws by soliciting contributions for the nonprofit from individuals with business before the City.

The DOI investigation found that the Mayor’s office occasionally acted inconsistently with fundraising guidelines; for instance, the Mayor solicited contributions for CONY from real estate developers with pending projects before the City. The DOI referred its findings to the Conflict Board, which has not publicly disclosed whether it took action against the Mayor. However, the Conflict Board advised reporters that while the Mayor’s conduct went against general guidance regarding solicitation in the City Charter, it did not violate any specific Conflict Board rule. The Conflict Board’s only recourse was thus to send a private warning letter to the Mayor.

The Times, whose reporters have published various stories on this matter, sent a FOIL request for a copy of the warning letter sent by the Conflict Board. The Mayor denied the request on the grounds that the letter was exempt from disclosure pursuant to New York City Charter §2603(k), which protects records of the Conflict Board, and Public Officers Law § 87(2)(g), an exemption created for inter-agency records.

The Court explained that if the documents in question had been demanded from the Conflicts Board, the statutory exception might apply. “However, the Conflict Board is not the Respondent here and the Mayor’s office is claiming a confidentiality exemption to a document that it merely received.” And while the City Charter protects certain records of the Conflicts Board from public disclosure, “the City Council has not enacted any similar statute protecting warning letters from disclosure by recipients.” The Court also pointed out that the Mayor’s Office has voluntarily disclosed past letters of advice from the Conflicts Board, thus contradicting the Mayor’s position that the City Charter prohibits disclosure of such letters.

The Mayor also argued that the documents were protected by Public Officers Law § 87(2)(g). This exemption, also known as the “deliberative process” exemption, holds that pre-decisional inter-agency or intra-agency materials may be protected from disclosure. But, as “the exemption covers solely pre-decisional materials, it does not apply to final agency policy or determinations.”

Here, the letter sought is a final agency determination as it reflects the Conflict Board’s final disposition regarding the DOI’s investigation into the Mayor. The Mayor argued that the letter is not a final determination, as it does not reach a conclusion regarding whether the Mayor violated the Conflict Board’s fundraising laws. “However,” held the Court, “the Conflict Board has also indicated that this letter is its final course of action and referred to the letter as the disposition of the case.”

The Mayor also argued that disclosure of the letters may lead the public, in the “court” of public opinion, “to convict servants of crimes they have not committed, given that the letters are meant as warnings but do not reach a conclusion on the criminality of the servant’s behavior.” But the Court ruled that “The public’s interest in knowing the extent of the warning issued to the Mayor supersedes the Mayor’s privacy interest, particularly as here the public is already generally aware of the allegations of fundraising violations in the first place.” And further, “The Mayor does not have a valid privacy interest to assert.” FOIL is premised “on the overriding policy consideration that the public is vested with an inherent right to know…. The public has the right to view the contents of the letter and come to its own conclusions regarding the Mayor’s fundraising efforts with CONY.

“Accordingly,” held the Court, “Petitioner’s FOIL request is valid, and the warning letter must be exchanged.