August 8, 2003
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
I have received your letter in which you asked whether the New York State Ethics
Commission "is exempt from the Freedom of Information Law" and "any other NYS sunshine laws...."
In this regard, as you are aware, the Freedom of Information Law generally requires that
government agency records be made available for inspection and copying, unless a ground for denial of access may properly be asserted. In the context of your question, the initial ground for denial, §87(2)(a), is relevant. That provision authorizes an agency to withhold records that "are specifically exempted from disclosure by state or federal statute." One such statute deals directly with records of the State Ethics Commission. Section 94 of the Executive Law deals with the powers and duties of the Commission, and subdivision (17), paragraph (a), states that:
"Notwithstanding the provisions of article six of the public officers law, the only records of the commission which shall be available for public inspection are:
(1) the information set forth in an annual statement of financial
disclosure filed pursuant to section seventy-three-a of the public
officers law except the categories of value or amount, which shall
remain confidential, and any other item of information deleted
pursuant to paragraph (h) of subdivision nine of this section:
(2) notices of delinquency sent under subdivision eleven of this section;
(3) notice of reasonable cause sent under paragraph (b) of subdivision twelve of this section; and
(4) notices of civil assessments imposed under this section."
Article Six of the Public Officers Law is the Freedom of Information Law, and based on the foregoing, the only records required to be disclosed by the Commission are those identified in (1) through (4) of paragraph (a). I note, too, that the introductory portion of the provision quoted above refers to certain records that are "available for inspection." Based on that language, it has been held that the Ethics Commission is not required to prepare photocopies of those records [John v. NYS Ethics Commission, 178 AD2d 51 (1992)].
Similarly, subdivision (18) of §94 of the Executive Law specifies that the meetings of the
Ethics Commission are outside the coverage of Article Seven of the Public Officers Law, which is the Open Meetings Law. That provision states in relevant part that : "Notwithstanding article seven of the public officers law, no meeting or proceeding...of the commission shall be open to the public..."
In sum, neither the Freedom of Information Law nor the Open Meetings Law is applicable to the State Ethics Commission.
I hope that the foregoing serves to clarify your understanding of the matter and that I have been of assistance.
Robert J. Freeman
cc: Walter C. Ayres