FOIL AO 19757
November 6, 2019
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence, except as otherwise indicated.
I am writing in response to your request for an advisory opinion regarding the manner in which Niagara County (the County) has responded to your Freedom of Information Law (FOIL) request for copies of financial disclosure forms filed by County legislators from 2013 to 2019.
In 1996, Niagara County passed a local law establishing a code of ethics. The code included a requirement that all County legislators file a financial disclosure form with the County Ethics Board. The code also included the following language:
“Transactional disclosure statements filed pursuant to this Code of Ethics and annual statements shall be sealed, indexed and maintained on file for five (5) years, in an appropriate manner, by the Board of Ethics. Such Disclosure Statements shall be destroyed upon the expiration of this five (5) year period. Such Disclosure Statements shall be confidential and may only be reviewed by the Board of Ethics, the District Attorney and the Sheriff.”
In 2019, the County amended the Ethics Code to state:
“Such Disclosure Statements filed in 2019, and all subsequent years, by those individual (sic) listed in section 2 above, shall be made available to the public upon proper written request pursuant to the disclosure requirements of the New York State Freedom of Information Law (FOIL).”
In response to your recent FOIL request for financial disclosure forms filed between 2013 and 2019, the County provided you with the 2019 forms, but withheld the forms filed between 2013 and 2018 asserting that the records were subject to “exemptions established under federal or state law” (McNall appeal determination 10/22/19). The County further asserted that “Because of the [Niagara County's Local Law regarding disclosure of the Financial Disclosure Forms], Financial Disclosure Forms prior to 2019 will not be provided without a court order.”
By way of background and for sake of clarification, I note that FOIL pertains to all government agency records and is based on a presumption of access. All records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (p) of the Law. One of those grounds, §87(2)(a), authorizes an agency to withhold records or portions thereof if the records “are specifically exempted from disclosure by state or federal statute.” (emphasis is mine)
The distinction between the terms “law” and “statute” has been addressed a number of times by the courts over the years:
“In common parlance and as generally understood a ‘statute’ is the result of the combined action of the legislature and of the governor on a bill. … A ‘statute’ is a ‘law’; but the converse is not true.” Tormey v. La Guardia, 172 Misc. 1091, 1095, 17 N.Y.S.2d 388, 392–93 (Sup. Ct.), aff'd sub nom. Tormey v. Laguardia, 259 A.D. 802, 19 N.Y.S.2d 1019 (App. Div. 1940), aff'd sub nom. Tormey v. La Guardia, 284 N.Y. 607, 29 N.E.2d 929 (1940)
“A statute is defined as a ‘legislative act’ being the result of the combined action of both the Legislature and the Governor on a bill (56 N.Y. Juris, § 1).” Sheehan v. City of Syracuse, 521 N.Y.S.2d 207, 208 (Sup. Ct. 1987)
“Local Law is not a statute.” New York Central Mutual Fire Insurance Co. v. Town of Cheektowaga, 13 A.D.3d 1189, 1190, 787 N.Y.S.2d 582, 583 (2004)
Several courts, including the Court of Appeals, have held that an agency's regulations or the provisions of a local enactment, such as a county code, local law, charter or ordinance, for example, do not constitute a "statute" [see e.g., Morris v. Martin, Chairman of the State Board of Equalization and Assessment, 440 NYS 2d 365, 82 Ad 2d 965, reversed 55 NY 2d 1026 (1982); Zuckerman v. NYS Board of Parole, 385 NYS 2d 811, 53 AD 2d 405 (1976); Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)].
In short, a local law, such as the County Code of Ethics, is not a “state statute” and cannot confer, require or promise confidentiality. In a decision that also involved financial disclosure forms and the application of a local ordinance, the court held that “it is the Freedom of Information Law that is the governing statute with respect to records of local boards of ethics.” Archdeacon v. Town of Oyster Bay, 12 Misc. 3d 438, 813 N.Y.S.2d 289 (Sup. Ct. 2006)
In our view, all County financial disclosure forms should be disclosed in response to a FOIL request in the same manner as those filed in 2019.
I hope this information proves useful.
cc: Keith McNall