New York State
Ethics Commission


Advisory Opinion No. 97-12: Interpretation of Advisory Opinion No. 89-7 as it relates to Freedom of Information Law requests made by former State officers or employees.

INTRODUCTION

The following advisory opinion is issued in response to a request from [ ], Senior Attorney with the State Office of Real Property Services ("ORPS"), who has asked the Commission for an interpretation of its Advisory Opinion No. 89-7 as it relates to Freedom of Information Law requests made by former State officers and employees.

Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission ("Commission") hereby renders its opinion that when a former State officer or employee, within two years of termination of State service, submits a Freedom of Information Law(1) request to his or her former agency or pursues the appeal of a denial of such a request, the agency should give a copy of this Advisory Opinion to the former employee. If the individual then pursues the request or the appeal, the agency may assume that he or she is proceeding on his or her own behalf, which is permitted. Should it later be discovered that the individual was proceeding in violation of §73(8), as interpreted herein, that information should be made known to the Commission, which has the authority to impose a civil penalty of up to $10,000 for each violation.

BACKGROUND

In one of its earliest opinions, Advisory Opinion No. 89-7, the Commission was presented with the following question: may a former State employee within two years of termination of his or her State employment make a freedom of information request pursuant to Public Officers Law §87 on behalf of a client? The Commission answered the question as follows:

A former State employee, within two years of termination from State service, may not appear or represent a client or any person on a Freedom of Information Law request. Such an appearance under Article 6 of the Public Officers Law (Freedom of Information), would not simply be pro forma. Should the request be denied, §89(4) of the Public Officers Law allows an appeal to be filed in writing and representation before such former State agency in order to reverse an initial denial of access to the information. A Freedom of Information Law request made on behalf of a client or other person would be an appearance or practice before the former agency which is prohibited by §73(8). (footnote)(2)

However, a former employee who is acting solely on his or her own behalf (and is not compensated for the services) in relation to a Freedom of Information Law request, may make such a request within two years of termination of employment with his former agency. In this limited circumstance, the individual is acting on his or her own behalf in relation to a personal inquiry. The Commission does not find that the "revolving door" provision was meant to limit such personal inquiries for public information, as long as such inquiries are personal in nature only and relate solely to the inquirer. The Commission would look closely at any circumstance which could be construed to be merely a veil to make an otherwise prohibited appearance before a former employing agency.

Recently, the State Office of Real Property Services was faced with a number of Freedom of Information Law requests from former employees. Relying on Advisory Opinion No. 89-7, ORPS denied the requests of individuals whose employment with the agency had ended less than two years ago and forwarded copies of that Advisory Opinion to the individuals.

In the course of ORPS denial of these requests, certain questions were raised. ORPS has asked for the Commission's assistance in interpreting its Advisory Opinion. Specifically, ORPS has raised the following questions:

APPLICABLE LAW

Public Officers Law §73(8)(a)(i) provides:

No person who has served as a state officer or employee shall within a period of two years after the termination of such service or employment appear or practice before such state agency or receive compensation for any services rendered by such former officer or employee on behalf of any person, firm, corporation or association in relation to any case, proceeding or application or other matter before such agency.

This subdivision, part of what is generally referred to as the "revolving door" provision, sets the ground rules for what individuals may do with the knowledge, experience, and contacts gained from public service after they terminate their employment with the State.

DISCUSSION

The specific questions asked by ORPS have caused the Commission to again focus on the issue of FOIL requests and the post-employment restrictions. The difficulties, which other agencies have also experienced, are highlighted by the questions presented by ORPS -- how will the Commission determine whether a personal request is "merely a veil to make an otherwise prohibited appearance before a former employing agency"?; is an agency, in contradiction of its authority under FOIL, responsible for asking on whose behalf the request is made?; how does an agency reconcile FOIL's requirement that records are available for public inspection by all members of the public with the prohibition on inspection by former agency employees?

Upon examining these inquiries, the Commission has recognized that Advisory Opinion No. 89-7 has created unanticipated problems. It has, therefore, considered how that Advisory Opinion can be implemented in a manner consistent with the Freedom of Information Law. The Commission believes that the two can be reconciled.

The Commission hereby advises ORPS and other agencies that when a former officer or employee files a Freedom of Information Request within two years of having left the agency or files an appeal from the denial of a Freedom of Information Request within such time, the individual making the request or filing the appeal should be given a copy of this Advisory Opinion. If the individual then pursues the request or appeal, the agency may assume that he or she is proceeding on his or her own behalf, which is permitted. It may proceed to process the request or determine the appeal. Should it later be discovered that the individual was proceeding in violation of §73(8), as interpreted by Advisory Opinion No. 89-7 and this opinion, that information should be made known to the Commission, which has the authority to impose a civil penalty of up to $10,000 for each violation.

This procedure lifts from an agency the burden of asking questions of a requestor not permitted by FOIL and allows for enforcement of the revolving door statute.

CONCLUSION

The Commission concludes that, when a former State officer or employee, within two years of termination of State service, submits a Freedom of Information Law request to his or her former agency or pursues the appeal of a denial of such a request, the agency should give a copy of this Advisory Opinion to the former employee. If the individual then pursues the request or the appeal, the agency may assume that he or she is proceeding on his or her own behalf, which is permitted. Should it later be discovered that the individual was proceeding in violation of §73(8), as interpreted herein, that information should be made known to the Commission, which has the authority to impose a civil penalty of up to $10,000 for each violation.

This opinion, until and unless amended or revoked, is binding on the Commission in any subsequent proceeding concerning the requesting individual who acted in good faith, unless material facts were omitted or misstated by the persons in the request for opinion.

Concur:

Angelo A. Costanza
Robert E. Eggenschiller
Donald A. Odell
Paul L. Shechtman, Members

Dissent:

Evans V. Brewster, Member

Dated: April 29, 1997


Endnotes

1. Public Officers Law §84 et. seq.

2. (Footnote from original) - The Freedom of Information Law guarantees the right of the public to have access to the public documents of a State agency. The law does not require any individual to appear by attorney or representative to obtain such information. The preclusion of such an appearance, etc., by a former State employee does not adversely affect a potential client--in that such client is able to make his or her own request for such information.



URL: http://www.nysl.nysed.gov/edocs/ethics/97-12.htm