The written opinion by the Committee on Open Government, dated Aug. 27, follows a Law360 investigation that revealed top New York state judges ignored a gift and income reporting rule for years. Senior judges erased the rule from the ethics canon and added questions to an existing annual financial disclosure form. Those questions sought less specific information about money and benefits the judges received.
When Law360 requested such disclosures, however, the Office of Court Administration and its Ethics Commission restricted access to the information and demanded nearly 1,500 individual forms be filed with each judge's name and title. Law360 delivered the stack of paper, as requested, along with digital copies in July.
But that process violates FOIL, the committee found.
"Requiring the requestor to identify every individual who filed and then submit individual requests for each of those financial statements sought is inconsistent with the requirements of FOIL and constitutes a denial of access," said Christen L. Smith, senior attorney for the watchdog.
The court system's reliance on internal regulations to force a member of the public into a different process with more restrictive rules also violates the law, she said.
"We do not believe that the cited regulation supersedes the disclosure requirements of FOIL," Smith wrote. "After conducting our own research, we believe that the Legislature has not passed a statute deeming the financial disclosure forms submitted to the commission confidential."
Smith further said the Ethics Commission is required to export data from any database "routinely" created from the disclosures — records Law360 also requested but was denied.
"OCA is an agency governed by FOIL," Smith said, noting that while the judiciary writ large is exempted from the law, "it follows that the various commissions of the OCA are also agencies governed by FOIL."
Courts have held that the committee's advisory opinions "should be upheld" as long as they are reasonable and rational. But the committee's advisory opinion alone, while influential, cannot force OCA officials to comply — a court order would be required.
A spokesperson for the state court system did not immediately respond to a request for comment on Monday.
New York State Senate Deputy Majority Leader Michael Gianaris previously told Law360 it "makes no sense that the leaders of an entire branch of government should be so secretive" about public disclosures. The senator has introduced a bill to mandate that all judicial disclosures be posted publicly.
--Editing by Philip Shea.
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