[A] free society is maintained when government is
responsive and responsible to the public, and when the public is
aware of governmental actions. The more open a government
is with its citizenry, the greater the understanding and
participation of the public in government.
As state ... services increase and public problems become
more sophisticated and complex and therefore harder to solve,
and with the resultant increase in revenues and expenditures,
it is incumbent upon the state ... to extend public
accountability wherever and whenever feasible.
The people's right to know the process of governmental
decisionmaking and to review the documents and statistics
leading to determinations is basic to our society. Access to
such information should not be thwarted by shrouding it with
the cloak of secrecy or confidentiality.
... [G]overnment is the public's business.(1)
State legislators throughout the country have various "perquisites of power" which help perpetuate their incumbencies.(2) For example, in many states the taxpayer pays for a legislator's "public interest" mail which is ostensibly designed to educate his or her constituency(3) However, while purporting to perform some public purpose, such mailings are often "indistinguishable from campaign propaganda"(4) As the New York State Commission on Government Integrity (Commission) stated: "Another way in which incumbents can magically convert tax dollars into campaign contributions is through mass mailings and other forms of mass communication at election time. This practice is an abuse of the public trust, yet sadly -- as any observer of modern campaigns knows -- it is widespread."(5) It is almost as if those states which subsidize such mail have a public campaign finance system designed exclusively for the already well-entrenched and well-financed incumbents.(6)
Taxpayer-financed public interest mailings are particularly helpful to and plentiful for legislators in New York State where incumbents already enjoy a uniquely high rate of reelection.(7) For example, a New York State senator is now annually allowed $14,000 of bulk mail (approximately 100,000 pieces of bulk mail),(8) $8500 in first class stamps,(9) two district-wide newsletters,(10) plus additional sums for committee chairpersons and ranking minority members.(11) Clearly, this is a generous allotment by any standard, especially when one considers that most challengers are often underfinanced.(12)
In the case of the New York State Senate," the Senate's obdurate secrecy over disclosing details on individual member mailings compounded the problem of incumbency protection. While willing (and, indeed, perhaps required) to provide an aggregate number for postage for the entire Senate, the Senate had steadfastly refused to provide a member-by-member breakdown,(14) which was necessary to determine whether a particular senator exceeded New York's already generous limits.(15)
In 1992, the New York State Senate's refusal to disclose member-by-member mailing expenditures collided with the public's right to know as expressed in the New York Freedom of Information Law (FOIL).(16) The Senate claimed that the author's FOIL request(17) for details on exactly how much "public interest" mail his opponent, Senator Tully, was generating at taxpayer expense was outside the scope of FOIL.(18) Even if the Senate was somehow legally insulated from such FOIL inquiries, which the New York Court of Appeals eventually held was not the case,(19) it would seem reasonable that the Senate, simply as a matter of good politics, would have voluntarily provided the information -- after all, it is not as though an accounting of Senator Tully's expenditures of public funds for an allegedly public purpose (i.e., "public interest" mailings to constituents) would have compromised any right of privacy. Incredibly, though, the Senate denied the FOIL request, and decided to fight the request in the judicial system at taxpayer expense.(20) After the Senate denied the FOIL request, the author filed suit to compel the Senate to disclose the details on how much taxpayer-financed public interest mail Senator Tully sent to his constituents.(21) Ultimately, in Weston v. Sloan,(22) the New York Court of Appeals held that FOIL required the Senate to disclose the details of Senator Tully's public interest mailings.(23)
II. A Brief History: Exposure of the Legislative Branch (Federal and State) to Freedom of Information Laws
A. State Freedom of Information Laws and Legislative Mailings
Except for Mississippi, every state, including New York, now has some form of a freedom of information (FOI) law providing for public access to government records.(24) While a majority of such states have separate access statutes for records of the legislative branch,(25) several states have an express provision in their FOI laws that allows some form of access to legislative records.(26) As we shall see, New York's FOIL has a special section for the Legislature, access to which is greatly circumscribed compared to access to non-legislative agencies covered by FOIL.(27) Whether their FOI laws apply to details on public expenditures for legislative mailings, many states routinely provide such information.(28) In New York, too, the Assembly has routinely provided such information to the public,(29) leaving the New York State Senate isolated in the secrecy it tried to rationalize in Weston.
B. The Federal Freedom of Information Act and Legislative Mailings
Like New York's FOIL,(30) the Federal Freedom of Information Act (FOIA)(31) provides that, subject to certain exemptions,(32) each covered "agency" must produce records in response to a request which "reasonably describes such records and ... is made in accordance with published rules [of that agency]."(33) However, Congress is completely exempt from FOIA.(34) Nevertheless, although it is completely exempt from its own FOIA disclosure requirements, Congress, like the New York State Assembly, routinely provides to the public details on each member's publicly supported postage Costs.(35) Again, this congressional candor is in stark contrast to the New York Senate's reticence that precipitated the Weston litigation.
While many states, in addition to New York,(36) patterned their FOI laws after FOIA,(37) no state copied FOIA's exemption of the legislative branch (i.e., the exemption of Congress from FOIA's coverage).(38) However, New York's FOIL approaches the federal exemption of Congress in that one seeking access under FOIL to New York State legislative records (as opposed to non-legislative "agency" records) must meet a higher standard by demonstrating that the requested legislative records fall within one or more categories in the FOIL section applicable to the Legislature.(39)
III. Weston v. Sloan: Applicability of the New York Freedom of Information Law to the New York State Senate
A. Structure of 1974 FOIL
As enacted in 1974, New York's original FOIL(40) provided that a state agency,(41) presumably including the New York Legislature, "shall make available for public inspection and copying" information in eight specific categories.(42) In other words, New York's original FOIL placed the burden upon the person seeking the information to demonstrate that the information sought was within one or more of eight categories of information or documents available under FOIL from an "agency" as that term was originally defined. While the categories of information an agency had to disclose from 1974 to 1977 are somewhat analogous to the categories the Legislature eventually had to disclose by virtue of FOIL's amendment in 1977,(43) there are few cases construing the categories,(44) particularly section 88(2)(e) of the Public Officers Law,(45) the category on which the Weston petitioners based their FOIL request.(46) Thus, in Weston, the litigants and the courts were in unchartered waters.
B. 1977 Amendment to FOIL
In 1977, the New York Legislature dramatically altered FOIL and expanded its coverage,(47) except as to the Legislature and the Judiciary.(48) In effect, for an "agency," the Legislature completely reversed the presumption against FOIL disclosure.(49) Thus, after the 1977 amendment an "agency" had to disclose information unless an exemption applied to the information.(50)
However, while the 1977 FOIL amendment generally liberalized FOIL, this liberalization did not extend to the Legislature or the Judiciary.(51) For information relating to the Legislature, the Legislature retained the original FOIL format, i.e., a person seeking information from the Legislature was still required to demonstrate that the requested information fell into one or more categories.(52) Moreover, under the 1977 amendment of FOIL, the Legislature created for itself a section(53) which left the burden upon the person seeking the information to demonstrate that the requested information was within the scope of an enumerated category.(54) Therefore, in order to prevail, the Weston petitioners had to demonstrate that information on Senator Tully's taxpayer-subsidized mailings fell within one or more of the categories enumerated in Public Officers Law section 88(2).
The category at issue in Weston appeared in substantially the same form in the 1974 and 1977 versions of FOIL.(55) Under the original FOIL, an "agency," including the Legislature, had to produce the following:
[I]nternal or external audits and statistical or factual
tabulations made by or for the agency.(56)
However, the 1977 FOIL required the Legislature, but not an "agency," to produce the following:
[I]nternal or external audits and statistical or factual
tabulations of, or with respect to, material otherwise available
for public inspection and copying pursuant to this section [i.e.,
section 88] or any other applicable provision of law.(57)
Thus, because the Weston petitioners relied on section 88(2)(e) to support their FOIL request, the issue in Weston was whether the petitioners requested information that was reflected in any Senate "statistical or factual tabulations of, or with respect to, material otherwise available for public inspection and copying pursuant to [Public Officers Law section 881 or any other applicable provision of law."(58)
C. Weston v. Sloan Resolves the Matter in Favor of Disclosure
In the New York State Supreme Court for Albany County, the Weston petitioners argued that the court should liberally construe FOIL, and that under such a liberal construction, the petitioners were entitled to the information relating to Senator Tully's mailings pursuant to section 88(2)(e).(59) In support of their argument, the petitioners submitted an opinion of the Committee on Open Government (COG),(60) which, in construing section 88(2)(e),(61) held that "[i]n sum, to the extent that the records sought [i.e., records on the amount of money expended by members on newsletters and other public interest mailings], consist of statistical or factual tabulations of or relating to other public records, such as a budget bill .... [COG] [believels] that they are accessible under [FOIL]."(62) Relying principally on FOIL's broad purposes, the lower court reversed the Senate's denial, directing disclosure under FOIL.(63) However, the Appellate Division for the Third Department unanimously reversed the lower court, holding that neither Public Officers Law section 88(2)(e), "nor any other applicable provision of law, specifically describes or mandates disclosure of the information requested" by the petitioners.(64)
The New York Court of Appeals broke down section 88(2)(e) into two component parts: (1) "internal or external audits and statistical or factual tabulations'"(65) (2) pertaining to `"material otherwise available for public inspection and copying pursuant to this section  or any other applicable provision of law.'"(66)
With respect to the first component, the Weston petitioners argued that, while not defined in FOIL, "statistical or factual tabulations" had been defined in Dunlea v. Goldmark.(67) As previously noted,(68) in Dunlea, the court, partially affirming an order of FOIL disclosure for a state budget examiner's files and worksheets,(69) considered the Rules of the Executive Department which defined the term "statistical or factual tabulation."(70) Similarly, in Weston, the Court of Appeals utilized the definition of "factual tabulation" as found in section 6150.2[d] of the Code of Rules and Regulations,(71) which provides that such a tabulation is "a collection of statements of objective information."(72) With this definition in hand, the Court of Appeals "conclude[d] ... that a`factual tabulation' as used in [FOIL], means a statement of objective fact and ... the facts and figures memorializing the expenditure of public funds for [Senator Tully's) legislative printings and mailings can be characterized as "factual tabulations.'"(73)
The second component of Public Officers Law section 88(2)(e), which required that the "statistical or factual tabulations" pertain to "material otherwise available [under FOIL] or any other applicable provision of law,"(74) was More difficult to establish. The Weston petitioners argued that the language "any other applicable provision of law" could embrace other non-FOIL statutes, particularly section 44 of the Legislative Law,(75) which provides that "copies of all session laws shall be made available to the public."(76) The petitioners further argued that since the Budget Law, which contains an appropriation for Senate postage,(77) must be made available pursuant to Legislative Law section 44, the second requirement of Public Officers Law section 88(2)(e) had been met as well.(78) The Court of Appeals agreed with the petitioners, holding that the details on the taxpayer-financed mailings of Senator Tully "must be disclosed pursuant to a FOIL request, as they are `data with respect to' material made available by [some other applicable provision of law, i.e.,] section 44 of the Legislative Law."(79)
D. Full Disclosure and its Aftermath (Much Less Mail)
The disclosure ultimately mandated by Weston demonstrated Senator Tully's total disregard of the Senate's mailing limits during 1992, although the disclosure came too late to be of any interest to the electorate during the 1992 State Senate campaign. According to that disclosure, Senator Tully's "bulk mailings" alone (which did not include his newsletters) nearly quintupled from 162,969 pieces of bulk mail in the 1991 non-election year to 631,902 pieces in the 1992 election year.(80) Assuming approximately 100,000 households existed in his senatorial district,(81) Senator Tully's 1992 output of 631,902 pieces of bulk mail translates into more than six publicly supported district-wide mailings,(82) which was more than double the amount of district wide mailings then allowed by the already generous limits of the Senate.(83) Tragically, unless there is legislative reform, the public has no remedy for this blatant disregard of the public interest.(84)
On the other hand, more recent Senate responses to additional FOIL inquiries regarding Senator Tully's 1993 and 1994 taxpayer-supported mailings indicate a marked decrease in his mail.(85) According to information provided by the Senate, the following table illustrates Senator Tully's taxpayer-financed mail during the entire period from 1991 to 1994:
Senator Tully's Taxpayer Financed "Public Interest" Mailings Year Total Pieces(86) Total Cost(87) 1991 544,012 $92,789.43 1992 944,869 $142,116.34 1993 509,409 $80,880.75 1994 485,866 $78,805.87
Thus, not only does Weston now mandate disclosure,(88) but the very possibility of disclosure now required by Weston may have inhibited Senator Tully's abuse of the mailing privilege after his 1992 election.
IV. Conclusion: Some Recommendations
Weston, of course, involved FOIL disclosure. However, while the holding of Weston does require FOIL disclosure on the amount of a senator's taxpayer-subsidized public interest mail, it also has broader implications. With the door now opened by the Court of Appeals, the public is entitled to FOIL disclosure on other legislative perquisites. Already, news organizations are using Weston to ferret out information the Senate might have otherwise withheld from the public.(89)
Beyond disclosure, Weston illustrates a need for legislative initiatives to curtail abuses of the perquisites which enable New York legislators to maintain their incumbencies with shocking and iron-clad frequency. To take just the mailing privilege now exposed under Weston, New York has absolutely no formal legislative limits on the amount of a senator's or an assembly person's publicly supported mail. The previously discussed informal Senate guidelines on the amount and timing of these dubious mailings only invite abuse, as evidenced by Senator Tully's excessive 1992 mailings at taxpayer expense with impunity.(90) New York State Governor George Pataki, while he was a State Senator in 1993, attempted to introduce legislation regarding, among other things, the timing of these mailings.(91) Clearly, legislation formalizing and, indeed, extending limits on the timing and amounts of these expensive communications of questionable value is in order.
Finally, Weston reminds us that the political playing field is not level but, instead, skewed heavily in favor of incumbents. As noted, both at the federal and state levels, legislators, and especially New York legislators, have a vice-like grip on their incumbencies, which almost invariably last until the legislator leaves on his or her own accord.(92) One may fairly and certainly assume that the virtually unregulated mailing privilege the New York State Senate sought to hide in Weston is only one of many perquisites that help assure legislative longevity.
The self-perpetuating nature of incumbency is so widespread and offensive to the public that many states and municipalities have already embraced the concept and practice of term limits as the ultimate antidote to an entrenched incumbent.(93) Already, twenty three states have adopted term limits.(94) Indeed, New York Governor George Pataki included term limits in his 1994 campaign platform, although the New York Legislature was unwilling to pass term limit legislation.(95) Of course, there are other less radical measures, such as campaign finance reform and improving ballot access,(96) which could level the playing field without intruding upon the electorate's right to limit a term at the ballot box. Perhaps the legacy of Weston will be to help sustain a focus on dealing in some manner with a political system so skewed in favor of incumbents that public cynicism and apathy are major by-products.
(1) N.Y. Pub. Off. Law [sections] 84 (McKinney 1988) (legislative declaration to the New York Freedom of Information Law (FOIL)).
(2) George Judson, The Perks of Power: Staff, Stamps and Lulus, N.Y. Times, May 10, 1992, at 35 (finding that the New York, Connecticut, and New Jersey legislatures allot legislators money for stamps, newsletters, staff, office space, and other privileges).
(3) See id.
(4) Kevin Sack, The great Incumbency Machine, N.Y. Times, Sept. 27, 1992 (magazine), at 49 (explaining that New York State legislators may protect their seats in office by abusing publicly financed mailings). Another form of promotion masquerading as a public service is the use of cable television at taxpayer expense. At least five state legislatures (New York, Oregon, Michigan, Rhode Island, and Washington) are now using television at taxpayer expense to "churn out programs ranging from the truly informative to the blatantly political and self-serving." Raymond Hernandez, Albany on the Air: Politically Savvy and Cable Ready, N.Y. Times, June 20, 1996, at B1.
(5) New York State Comm. on Gov't Integrity, Restoring the Public Trust: A Blueprint for Government Integrity 49-50 (1990) [hereinafter Restoring the Public Trust]. In 1987, New York State Governor Mario Cuomo established the New York State Commission on Government Integrity (Commission) pursuant to the Moreland Act. N.Y. Exec. Law [sections] 6 (McKinney 1993). Governor Cuomo established the Commission in order to examine abuses in government and to make recommendations for the correction thereof. See Kenneth Fisher, New York Forum About Politics: Feerick Sins of Omission, Newsday (N.Y.), Mar. 26, 1990, at 1 (discussing the formation of the Commission). The Commission is eponymously known as the "Feerick Commission" after its chair, John D. Feerick, who is now the Dean of Fordham University Law School. See Frank Anechiarico & James B. Jacobs, Purging Corruption From Public Contracting: The "Solutions" Are Now Part of the Problem, 40 N.Y.L. Sch. L. Rev. 143, 165 & n.154 (1995) (discussing the creation of the Commission); see also Thomas Reppetto, New York Forum About Politics: Dismissed For Good Cause?, Newsday (N.Y.), Apr. 23, 1987, at 88 (commenting favorably on the qualifications of John Feerick). Restoring the Public Trust is only one of several reports issued by the Commission. For a collection of the reports issued by the Commission, see Government Ethics Reform for the 1990's: The Collected Reports of the New York State Commission on Government Integrity (Bruce Green ed., 1991) [hereinafter Government Ethics Reform].
(6) Incumbents at all levels of government already enjoy, quite apart from their access to public resources for such things as public interest mail, a tremendous advantage over challengers in raising campaign contributions. For example, in 1992, sitting members of Congress in New York and New Jersey raised twelve times as much money as their opponents. See Jerry Gray, Book of speeches to Mine Cuomo's Silver Tongue, N.Y. Times, Feb. 14, 1993, at A44. Furthermore, in New York, sitting members of Congress outspent their opponents by a margin of almost five to one, "with incumbents spending an average of $644,000 to their challengers' $140,000." Id. The same is true at the state level. See Government Ethics Reform, supra note 5, at 144-45 (noting that incumbents often become preoccupied with continuous fundraising in order to pay off campaign debt and plan for future campaigns).
(7) New York State incumbents, reportedly the most likely of any state legislators to be reelected, retained their seats in 1990 at a rate even higher than the rate of reelection for congressional incumbents (98.9% for New York State incumbents compared to 96.1% for congressional incumbents). See Sack, supra note 4, at 48. In fact, New York State legislative incumbents had the lowest rate of turnover in the United States from 1979 to 1989. See Ian Fisher, For Assembly and Senate, Slim Changes, N.Y. Times, Nov. 14, 1994, at B6 (characterizing New York's election process as "the nation's most elaborate machinery to protect incumbents"). In 1992, the year the author ran for a seat in the New York State Senate against Senator Tully, the reelection rate for New York State legislative incumbents, while down from 1990, was still high at 92%. See Joyce Purnick, In Legislative Elections, Choices Are Hard to Find, N.Y. Times, Oct. 24, 1994, at B4. Even in 1994, when incumbents were at risk, only four New York State legislative incumbents lost their seats. See Fisher, supra, at B6. See Kevin Sack, Senate Mailings Are Criticized by Democrats, N.Y. Times, June 15, 1993, at B5. In 1992, "bulk mail," which the sender pre-sorts by carrier route and zip code, cost approximately fourteen cents per piece in postage, excluding such "soft" costs as the labor involved in pre-sorting by carrier route and printing. See 39 U.S.C. [sections] 3622(b)(3) (1994) (commanding the Postal Rate Commission to consider direct and indirect cost factors when determining postal rates).
(9) See Sack, supra note 8, at B5.
(10) See Senate Cuts Spending on Mailings by 35 Percent, Times Union (Albany, N.Y.), July 14, 1995, at B2. Three district wide newsletters had been the standard until 1995 when, to his credit, the Senate Majority Leader, Joseph Bruno, a Republican from Rensselaer, New York, cut the allotment to two such newsletters. See Senator Joseph Bruno, News Release (Nov. 15, 1995) (on file with author). Before 1995, the Senate's annual allotment of tax payer financed mailings was essentially the same as the allotment after 1995, except that the Senate had not quantified the amount of bulk mail committee chairpersons could send to constituents, which gave committee chairpersons virtually unlimited mailing privileges. See James Dao, Democrats Accuse 7 Republican Senators of Violating Mailing Rule, N.Y. Times, Feb. 17, 1994, at B6 (reporting that committee chairpersons receive perquisites that virtually secure their positions in office). However, before Weston v. Sloan, 643 N.e.2d 1071 (N.Y. 1994), the allotment of mailings was entirely informal and never expressed in any document. See, Steven Lee Myers, Senate Needs Open Budget, Democrats Say, N.Y. Times, Mar. 11, 1993, at B9 (explaining that the Senate and Assembly majority leaders "exercise exclusive control over" the expenditure of money for perquisites). No doubt in response to Weston, in 1993, former Senate Majority Leader Ralph Marino, a Republican from Oyster Bay, New York, adopted guidelines containing various annual limits on member ("non-political") mail as well as an injunction against the "political" content thereof. See Senator Ralph Marino, News Release (Oct. 7, 1993) (on file with author). These 1993 guidelines also contained for the first time a requirement that the Senate disclose details on each member's mail. See id. Finally, the 1993 guidelines continued a prohibition on any such mailings within 30 days of an election. See id. Still, the 1993 guidelines are merely an expression of policy. The guidelines may be revoked at the whim of the Senate Majority Leader and do not carry the force of law if violated by a senator. See State Senate Needn't Reveal Mailings, Times Union (Albany, N.Y.), Feb. 5, 1994, at B2 (noting that even though Senate guidelines determine the expenditure of money for mailings, "[n]o laws govern how much mail a state lawmaker can send" to his or her constituents).
(11) See Judson, supra note 2, at 35 (reporting that committee chairpersons and party leaders receive more money than rank-and-file members).
(12) See Gray, supra note 6, at A44 (finding that New York congressional incumbents spent substantially more money on campaigns than their opponents).
(13) The New York State Legislature is bicameral, consisting of a Senate and an Assembly. See N.Y. Const. art III, [sections] 1. The annual mailing allotment for a New York Assembly person is markedly less than that of a senator. See Judson, supra note 2, at 35 (finding that Assembly persons receive only 8620 stamps whereas Senators receive 100,000 stamps).
(14) See Editorial, New York's Secretive Legislature, N.Y. Times, Apr. 15, 1993, at A20 [hereinafter Secretive Legislature] (criticizing New York legislative leaders for not accounting for legislative expenditures on a member-by-member basis). Interestingly, before Weston, the New York State Assembly provided the public with semi-annual details on the amount of its member mailings. See id. at A20. In their brief filed in the Court of Appeals, the Weston petitioners referred to the Assembly's semi-annual disclosure of member mailings and noted the Assembly's candor. See Brief for Petitioners-Appellants at 5, Weston, 643 N.E.2d 1071 (No. 6931-92) [hereinafter Brief for Petitioners]. However, the Assembly's unsuccessful attempt to amend FOIL to provide for disclosure of each member's mailings suggests that the Assembly considered its pre-Weston disclosure to have been entirely gratuitous and not required by FOIL.
(15) See supra notes 8-11 and accompanying text (describing the annual mailing limits for senators).
(16) N.Y. Pub. Off. Law [subsections] 84-90 (McKinney 1988 & Supp. 1997). The New York State Legislature originally enacted FOIL in 1974. See Freedom of Information Law, ch. 578, 1974 N.Y. Laws 1538 [hereinafter FOIL I], repealed and replaced by Freedom of Information Law, ch. 933, 1977 N.Y. Laws 1 (codified as amended at N.Y. Pub. Off. law [subsections] 84-90 (McKinney 1988 & Supp. 1997)) [hereinafter FOIL II]. Throughout the remaining portion of this Article, the 1974 FOIL will be referred to as the "original FOIL."
(17) The author's colleague, Burton Weston, made the FOIL request on September 16, 1992. See Record on Appeal at 15-16, Weston, 643 N.E.2d 1071 (No. 6931-92) [hereinafter Record on Appeal]. The Record on Appeal includes a copy of Mr. Weston's FOIL request. See id. Among other things, the request sought information regarding the number of Senator Tully's taxpayer-subsidized newsletters, bulk-rate mailings, and first class mailings during 1991 and 1992. See id.
(18) See Record on Appeal, supra note 17, at 17. Under FOIL, an "agency shall ... make available for public inspection and copying all records" unless the record falls within one of the statutory exemptions. N.Y. Pub. Off. Law [section] 87(2) (McKinney 1988 & Supp. 1997) (emphasis added). In Weston, the Senate did not claim that any of the FOIL exemptions applied to the details of Senator Tully's publicly financed mail; rather, the Senate simply claimed that the request was outside the scope of the limited categories of information the Legislature was required to produce under FOIL. See Weston, 643 N.E.2d at 1072.
(19) See Weston, 643 N.E.2d at 1073.
(20) See Letter from Stephen Sloan, Secretary of the Senate, to Burton Weston (Sept. 24, 1992), reprinted in Record on Appeal, supra note 17, at 27.
(21) See Weston v. Sloan, No. 6931-92 (N.Y. Sup. Ct. Feb. 18, 1993), rev'd, 607 N.Y.S.2d 478 (App. Div.), aff'd as modified, 643 N.E.2d 1071 (N.Y. 1994). In New York, a person who challenges a governmental decision, such as the Senate's decision not to disclose Senator Tully's taxpayer-financed mailings, does so in a proceeding under Article 78 of the New York Civil Practice Law and Rules. See N.Y. C.P.L.R. [subsections] 7801-7806 (McKinney 1995 & Supp. 1997). The person bringing the proceeding is referred to as the "petitioner" and the person against whom the proceeding is brought is referred to as the "respondent." Id. [section] 105(b). In Weston, the petitioners were Burton Weston and the author. See Weston, 643 N.E.2d at 1071. The respondent was Stephen Sloan, the Secretary of the New York State Senate. See id. In response to Mr. Weston's FOIL request, Mr. Sloan stated: "The six items you requested are not available under the Freedom of Information Law, therefore, your requested [sic] is denied." Letter from Stephen Sloan, Secretary of the Senate, to Burton Weston (Sept. 24, 1992), reprinted in Record on Appeal, supra note 17, at 27. The Rules and Regulations Relating to Public Inspection and Copying Legislative Records required the Weston petitioners to appeal the Secretary's decision to Angelo Mangia, the Counsel for the Senate Majority Leader. See Rules and Regulations Relating to the Public Inspection and Copying of Legislative Records [section] 9 (1991), reprinted in Record on Appeal, supra note 17, at 36-37. After reviewing the petitioners' appeal, Mr. Mangia found that "[t]he items [that petitioners] requested... [were] not included in the list of records to be made available for inspection and copying [under FOIL]." Letter from Angelo J. Mangia, the Counsel for the Senate Majority Leader, to Burton Weston (Oct. 16, 1991), reprinted in Record on Appeal, supra note 17, at 29.
(22) 643 N.E.2d. 1071 (N.Y. 1994). In Weston, the Court of Appeals held: "Thus, to the degree that records of a State Senator's printings and mailings are `with respect to' an item in the Budget Law, they are made `available' by an `applicable provision of law' and are subject to disclosure under FOIL." Id. at 1073 (quoting N.Y. Pub. Off. Law [section] 88(2)(e) (McKinney 1988)). However, the Court of Appeals also found that the Senate was not required to disclose copies of newsletters and information on targeted mailings (i.e., mailings targeted at a particular group such as, senior citizens) under FOIL because they would not be included in factual tabulations. See id. at 1073-74. Interestingly, members of both major parties have used the legal system to question and, indeed, enjoin publicly supported mailings. For example, in a suit by the former Chairperson of the Republican State Committee, the Republican Party challenged the constitutionality of an allegedly political newsletter published by former New York Governor Mario Cuomo. See Powers v. Cuomo, No. 5882-92 (N.Y. Sup. Ct. June 1, 1992). For reasons not known to the author, the suit was discontinued in August 1992. However, in Schulz v. New York, 654 N.E.2d 1226 (N.Y. 1995), a Libertarian Party gadfly successfully revived the same constitutional theory and successfully challenged the very same newsletter. See id. at 1230-33; see also infra note 84 and accompanying text (discussing constitutional challenges to public interest mailings).
(23) See Weston, 643 N.E.2d at 1073; see also infra Part III.C (discussing the Weston decision).
(24) See Burt A. Braverman & Wesley R. Heppler, A Practical Review of State Open Records Laws, 49 Geo. Wash. L. Rev. 720 app. (1981) (citing all state freedom of information (FOI) laws).
(25) See id. at 731 & n.78. Some state FOI laws include the legislative and judicial branches in their definitions of an "agency" which is subject to FOI disclosure. See id. In any event, a person seeking information should argue that the legislative and judicial branches are included in the definition of "agency" even if such branches are not mentioned in the definition. See id. at 731 & nn.80-81 (noting that several state courts have required their state judicial branch to disclose records to the public under their state FOI law). In New York, the original FOIL was silent as to whether "agency" included the Legislature and Judiciary; however, the Legislature amended the original FOIL in 1977 to specifically exclude the Judiciary. See infra Part III.B (discussing the amendment of the original FOIL). Additionally, the Legislature amended the original FOIL to make access to legislative records more difficult than access to agency records. See infra notes 51-54 and accompanying text (analyzing the amendment of the original FOIL).
(26) See Braverman & Heppler, supra note 24, at 731 & n.79 (citing state FOI laws that expressly allow access to legislative records).
(27) See infra notes 47-54 and accompanying text (comparing the ease of access to legislative records with the ease of access to other agency records under FOIL).
(28) See, e.g., California Assembly Journal (on file with author) (itemizing postage by member); Wisconsin State Senate Monthly Expenditure Reports (on file with author) (same); Georgia House of Representatives Quarterly Expenditures Reports (on file with author) (same); Maryland House of Delegates General Legislative Expenses (on file with author) (same).
(29) See supra note 14 and accompanying text (discussing the information disclosure practices of the Assembly).
(30) The New York Legislature based FOIL on the Freedom of Information Act (FOIA). See Ralph J. Marino, The New York Freedom of Information Law, 43 Fordham L. Rev. 83, 83 (1974) (characterizing FOIL as "patterned after" FOIA); Jeffrey C. Dannenberg, Note, New York's Freedom of Information Law, Disclosure Under the CPLR, and the Common-Law Privilege for Official Information: Conflict and Confusion over "The People's Right to Know," 33 Syracuse L. Rev. 615, 620 (1982) (concluding that New York state courts "frequently recognize" that FOIL "closely resemble[s]" FOIA).
(31) 5 U.S.C. [section] 552 (1994).
(32) See id. [section] 552(b) (listing exemptions). FOIA contains certain "general" and "specific" exemptions. See id. (listing records relating to internal practices of an agency as a general exemption and records containing trade secrets and medical files as specific exemptions).
(33) Id. [section] 552(a)(3). Additionally, each agency must produce certain specific items. See id. [section] 552(a)(1)-(2) (requiring an agency to publish its rules of procedure, final opinions, and statements of policy). However, 5 U.S.C. [section] 552(a)(3) is generally regarded as the "guts" of FOIA. Telephone Interview with Harry Hammitt, Editor, Access Rep. (Lynchberg, Va.) (Dec. 1, 1996).
(34) The definition of "agency" excludes Congress, among other governmental bodies. See 5 U.S.C. [section] 552(e).
(35) See Secretive Legislature, supra note 14, at A20 tbl. (comparing the disclosure practices of the New York State Legislature with the United States Congress).
(36) See supra note 30 and accompanying text (discussing the similarity of the New York FOIL and the Federal FOIA).
(37) See Braverman & Heppler, supra note 24, at 727 nn.47-48 (citing state FOI laws that are modeled after FOIA); William Randolph Henrick, Comment, Public Inspection of State and Municipal Executive Documents: "Everybody, Practically Everything, Anytime, Except....", 45 Fordham L. Rev. 1105, 1105 & n.6 (1977) (noting that New York, California, Oregon, and Maryland patterned their FOI laws after FOIA). However, it should be noted that not all states have copied FOIA as did New York. See id. at 1105-06 & n.7 (citing state FOI laws that did not copy FOIA and opining that the "experience" of these states provided a "fertile source" for the growth of their FOI laws). In fact, some states had inspection statutes on their books even before FOIA. See id. at 1105 (stating that Wisconsin has "provided for a statutory right of inspection of public records" since 1849).
(38) Despite Congress exempting itself from the coverage of FOIA, information that Congress would have made available under a pre-FOIA federal "common laW" right is still available. See Schwartz v. United States Dep't of Justice, 435 F. Supp. 1203, 1204 (D.D.C. 1977), aff'd, 595 F.2d 88 (D.C. Cir. 1979). For example, in Schwartz, the plaintiff sought records from the late Congressman Peter Rodino, who was then the Chairman of the House Committee on the Judiciary. See id. at 1203. The plaintiff sought these records under two theories: (1) common law; and (2) FOIA. See id. In rejecting Congressman Rodino's motion to dismiss, the district court recognized that FOIA's exemption of Congress did not imply a repudiation of the pre-FOIA common law right of access to congressional records: The historic common law right to inspect and copy public records is recognized in [the District of Columbia].... The general rule is that all three branches of government, legislative, executive, and judicial, are subject to the common law right .... .... If Congress wishes to exempt itself from the common law rule or to impose standards for its application, it has the means to do so readily at its disposal. It has, however, not done so and therefore remains subject to the common law rule. Id. at 1203-04. In Weston v. Sloan, 643 N.E.2d 1071 (N.Y. 1994), the petitioners' request for details on Senator Tully's taxpayer-financed public interest mail was based solely on FOIL, although certainly the request could have been buttressed by a pre-FOIL common law right of access, assuming there is one in New York. See id. at 1071.
(39) See infra notes 51-54 and accompanying text (discussing the disclosure of legislative records under the categories of the 1977 FOIL).
(40) Freedom of Information Law, ch. 578, 1974 N.Y. Laws 1538, repealed and replaced by Freedom of Information Law, ch. 933, 1977 N.Y. Laws 1 (codified as amended at N.Y. Pub. Off. Law [sub-section] 84-90 (McKinney 1988 & Supp. 1997)).
(41) Under New York's original FOIL, the Legislature defined "agency" as "any state or municipal board, bureau, commission, council, department, public authority, public corporation, division, office or other governmental entity performing a governmental or proprietary function ...." FOIL I, supra note 16, at sec. 2, [sections] 87. Presumably, this definition would have included the New York State Senate, but before the question was ever raised in any litigation, the Legislature modified this definition in 1977. See FOIL II, supra note 16, at sec. 1, [sections] 86. The Legislature also placed the Senate and Assembly into a special category with respect to FOIL disclosure provisions. See id. at see. 1, [sections] 88. Interestingly, the FOIL definition of "agency" has itself spawned litigation over whether or not a particular government unit should be considered an "agency" for FOIL purposes. See, e.g., Dannenberg, supra note 30, at 615 n.5 (citing cases). For a discussion of this issue in a national context, see Andrea G. Nadel, Annotation, What Constitutes an Agency Subject to Application of State Freedom of Information Act, 27 A.L.R. 4th 742 (1984 & Supp. 1994).
(42) FOIL I, supra note 16, at sec. 2, [sections] 88. New York's original FOIL provided, in pertinent part, that any state "agency" must provide the following information: a. final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases; b. those statements of policy and interpretations which have been adopted by the agency and any documents, memoranda, data, or other materials which led to the formulation thereof; c. minutes of meetings of the government body of the agency and of public hearings held by the agency; d. internal or external audits and statistical or factual tabulations made by or for the agency; e. administrative staff manuals and instruction to staff that affect members of the public; f. police blotters and arrest records; g. an itemized record setting forth name, address, title, and salary of every officer or employee of an agency except officers and employees of the state law enforcement agencies shall be compiled by each fiscal officer charged with the duty of preparing payrolls for such officers and such records shall be made available for inspection by the officer charged with the duty of certifying such payrolls to bona fide members of the news media upon written notice. In the case of the state police and other law enforcement agencies, the records shall list the officials or employees' titles and salary only, without identifying individual employees ... ; and h. any other files, records, papers or documents required by any other provision of law to be made available for public inspection and copying. Id. The Legislature carried over the above categories, which were originally applicable to all agencies," in substantially the same form to the 1977 FOIL. See FOIL II, supra note 16, at sec. 1, [Sections] 88. Ironically, former New York State Senate Majority Leader Ralph Marino, who helped lead the Senate's resistance to the FOIL disclosure at issue in Weston, co-sponsored the original FOIL. See Legislative Bill Jacket to Freedom of Information Law, ch. 578, 1974 N.Y. Laws 1538 (Letter from Senator Ralph Marino to Michael Whiteman regarding the original FOIL). Not long after the Legislature enacted the original FOIL in 1974, Senator Marino wrote that the categories in the original FOIL were "not intended to be exhaustive." Marino, supra note 30, at 86. During the Weston case, the petitioners argued that Senator Marino's words meant exactly what they said, and therefore the Legislature did not intend to limit the petitioners to the FOIL categories. See Brief for Petitioners, supra note 14, at 13-15. Of course, since the Weston court eventually ruled that the petitioners' request was within the FOIL categories, the court never had to address the issue of whether the categories were exhaustive. See Weston, 643 N.E.2d at 1073.
(43) See supra note 42 (discussing the categories of information under the original FOIL and the 1977 FOIL).
(44) However, at least one case does construe the original FOIL categories. See Dunlea v. Goldmark, 389 N.Y.S.2D 423 (App. Div. 1976), aff'd, 372 N.E.2d 798 (N.Y. 1977). In Dunlea, the court distinguished "statistical or factual tabulations" from expressions of opinion, and held that the Director of the Budget must disclose state budget files to a research group under the 1974 FOIL. See Dunlea, 389 N.Y.S.2D at 425. In Weston, the Court of Appeals cited Dunlea with approval because the Dunlea court distinguished the disclosure of factual data from the protection of privacy of a public official's expression of opinion on proposed actions. See Weston, 643 N.E.2d at 1073. Thus, although Dunlea involved FOIL access to records of the Executive Branch pursuant to the original FOIL categories of available information, Dunlea was, nevertheless, useful in defining the critical "statistical or factual tabulations" component of FOIL upon which the Weston petitioners relied. See infra notes 67-72 and accompanying text (discussing the petitioners' argument that FOIL required the Senate to disclose information on Senator Tully's public-interest mailings because the state budget containing the postage cost of his mailings was a statistical tabulation).
(45) N.Y. Pub. Off. Law [sections] 88(2)(e) (McKinney 1988).
(46) See infra Part III.C (discussing the petitioners' reliance on section 88(2)(e) of the Public Officers Law).
(47) See Freedom of Information Law, ch. 933, 1977 N.Y. Laws I (codified as amended at N.Y. Pub. Off. Law [sub-section] 84-90 (McKinney 1988 & Supp. 1997)).
(48) See FOIL II, supra note 16, at sec. 1, [sub-section] 86(3), 88. Although the 1977 amendment carved out subsections to section 88(2) of the Public Officers Law and required governmental agencies to disclose additional records, these subsections did not apply to the Legislature and the Judiciary because the 1977 FOIL expressly excluded the Legislature and the Judiciary from the coverage of section 88. See Id. at sec. 1, [section] 86(3). However, other pre-FOIL access statutes applicable to the Judiciary remained operative after the 1977 exclusion of the Judiciary from the scope of FOIL. See McKinney's New York Rules of Court [sections] 124.3 (1997) (requiring the Office of Court Administration to publish a list of all of the records in its possession regardless of whether they are available under FOIL); id. [sections] 216.1 (1997) (commanding a court not to seal judicial records in all cases except when a statute expressly authorizes a court to do so); Reporters Comm. For Freedom of the Press, Judicial Records: A Guide To Access in State & Federal Courts 13-14 (1995) (providing an overview of the laws that govern access to records in the courts of New York State); see also Crain Comm., Inc. v. Hughes, 521 N.Y.S.2D 244, 245 (App. Div. 1987) (affirming the common law right of access to court records), aff'd, 539 N.E.2d 1099, 1100 (N.Y. 1989).
(49) See Legislative Bill Jacket, Freedom of Information Law, ch. 933, 1977 N.Y. Laws 1 (Letter from Ralph J. Marino, Senate Majority Leader, to Judah Gribetz, Counsel for former Governor Mario Cuomo, regarding the 1977 FOIL) (arguing that the 1977 FOIL "mandates" all agencies to disclose all records with few exceptions).
(50) See FOIL II, supra note 16, at sec. 1, [sections] 87.
(51) The Judiciary was entirely removed from FOIL under the 1977 amendment. See id. at sec. 1, [sections] 86.
(52) Compare id. at sec. 1, [sections] 88 (listing the categories of records that the Legislature must disclose to the public), with FOIL I, supra note 16, at sec. 2, [sections] 87 (same). The categories of information an agency was required to produce under the original FOIL were not entirely identical to the categories the Legislature had to produce under the amended 1977 FOIL. Compare FOIL II, supra note 16, at sec. 1, [sections] 87 (listing the categories of records that an agency must disclose to the public), with FOIL I, supra note 16, at sec. 2, [sections] 88 (same). In Weston, the critical section, section 88(2)(f), which the Legislature later re-lettered as section 88(2)(e), was slightly modified as a result of the 1977 amendment. Compare FOIL II, supra note 16, at sec. 1, [sections] 88(2)(f) (requiring the Legislature to disclose "statistical and factual tabulations" relating to "material otherwise available" under statutory provisions), with FOIL I, supra note 16, at see. 2, [sections] 88(1)(d) (requiring the Legislature to disclose "statistical and factual tabulations" regardless of their availability under statutory provisions).
(53) See FOIL II, supra note 16, at sec. 1, [sections] 88. Under the current FOIL, which differs slightly from the 1977 version, the Legislature must provide to the public information falling into one or more of the following nine categories: (a) bills and amendments thereto, fiscal notes, introducers' bill memoranda, resolutions and amendments thereto, and index records; (b) messages received from the governor or the other house of the legislature, and home rule messages; (c) legislative notification of the proposed adoption of rules by an agency; (d) transcripts or minutes, if prepared, and journal records of public sessions including meetings of committees and subcommittees and public hearings, with the records of attendance of members thereat and records of any votes taken;
(e) internal or external audits and statistical or factual tabulations of, or with respect to, material otherwise available for public inspection and copying pursuant to this section or any other applicable provision of law;
(f) administrative staff manuals and instructions to staff that affect members of the public;
(g) final reports and formal opinions submitted to the legislature;
(h) final reports or recommendations and minority or dissenting reports and opinions of members of committees, subcommittees, or commissions of the legislature;
(i) any other files, records, papers or documents required by law to be made available for public inspection and copying. N.Y. Pub. Off. Law [sections] 88(2) (McKinney 1988 & Supp. 1997). The 1977 FOIL categories for the Legislature in Public Officers Law section 88 were slightly different:
(a) bills and amendments thereto, fiscal notes, introducers' bill memoranda, resolutions and amendments thereto, and index records;
(b) messages received from the governor or the other house of the legislature, and home rule messages;
(c) legislative notification of the proposed adoption of rules by an agency;
(d) members' code of ethics statements;
(e) transcripts or minutes, if prepared, and journal records of public sessions including meetings of committees and subcommittees and public hearings, with the records of attendance of members thereat and records of any votes taken;
(f) internal or external audits and statistical or factual tabulations of, or with respect to, material otherwise available for public inspection and copying pursuant to this section or any other applicable provision of law;
(g) administrative staff manuals and instructions to staff that affect members of the public;
(h) final reports and formal opinions submitted to the legislature;
(i) final reports or recommendations and minority or dissenting reports and opinions of members of committees, subcommittees, or commissions of the legislature;
(j) any other files, records, papers or documents required by law to be made available for public inspection and copying. FOIL II, supra note 16, at sec. 1, [sections] 88(2).
(54) See FOIL II, supra note 16, at sec. 1, [sections] 88(2).
(55) Compare FOIL I, supra note 16, at sec. 2, [sections] 88(l)(d), with FOIL II, supra note 16, at sec. 1, [sections] 88(2)(f). For a comparison of the exact language contained in the 1974 and 1977 versions of FOIL, see infra notes 56-57 and accompanying text.
(56) FOIL I, supra note 16, at sec. 2, [sections] 88(1)(d).
(57) FOIL II, supra note 16, at sec. 1, [sections] 88(2)(f).
(58) N.Y. Pub. Off. Law [sections] 88(2)(e) (McKinney 1988).
(59) See Weston v. Sloan, No. 6931-92 at 2 (N.Y. Sup. Ct. Feb. 18, 1993), rev'd, 607 N.Y.S.2d 478 (App. Div.), aff'd as modified. 643 N.E.2d 1071 (N.Y. 1994).
(60) Originally known as the Committee on Public Access to Records (COPAR), the Committee on Open Government (COG) was chartered in the original version of FOIL. See FOIL I, supra note 16, at [sections] 88(8). Today, under Public Officers Law section 89(1)(b), CCOG is empowered to furnish, among other things, advisory opinions regarding FOIL. See N.Y. Pub. Off. Law [sections] 89(1)(b) (McKinney 1988). In 1987, the television show Inside Albany (PBS television broadcast) asked COG of the Senate and the Assembly had to disclose under FOIL information on each member's " newsletters and other publications" for the years 1986 and 1987. See Letter from Robert Freeman, Executive Director of COG, to Lise Bang-Jensen and David Hepp 1-2 (DEc. 22, 1987), reprinted in Record on Appeal, supra note 17, at 46-47. The COG opinion submitted by the Weston petitioners responded to the question raised by Inside Albany and concluded that FOIL required the Senate and Assembly to disclose the information. See id. at 3.
(61) Actually, the COG opinion in question construed section 88(2)(f) of the Public Officers Law. See Letter from Robert Freeman, Executive Director of COG, to Lise Bang-Jensen and David Hepp 3 (Dec. 22, 1987), reprinted in Record on Appeal, supra note 17, at 46-47. The Legislature later re-lettered section 88(2)(f) as section 88(2)(e). See supra note 52 and accompanying text (discussing section 88(2)(f) and section 88(2)(e).
(62) Letter from Robert J. Freeman, Executive Director of COG, to Lise Bang-Jensen and David Hepp 3 (Dec. 22, 1987), reprinted in Record on Appeal, supra note 17, at 55. As a general rule, unless a COG opinion is totally irrational, courts should follow a COG opinion. See, e.g., Miracle Mile Assoc. v. Yudelson, 417 N.Y.S.2d 142, 146 (App. Div. 1979), appeal denied, 397 N.E.2d 758, appeal denied, 397 N.E.2d 761 (N.Y. 1979). Strangely, in Weston, while the Court of Appeals adopted the reasoning in COG'S opinion, the Court of Appeals did not cite to the COG opinion. See Weston, 643 N.E.2d at 1073. Similarly, the Appellate Division for the Third Department did not cite to the COG opinion, and the lower court only referred to it in passing. See Weston, No. 6931-92 at 3.
(63) See Weston, No. 6931-92 at 3.
(64) Weston v. Sloan, 607 N.Y.S.2d 478, 479 (App. Div. 1994). The Weston petitioners could not appeal this reversal by the Appellate Division without leave, which was subsequently obtained from the Court of Appeals. See Weston v. Sloan, 643 N.E.2d 979 (N.Y. 1994).
(65) See Weston, 643 N.E.2d at 1072 (quoting N.Y. Pub. Off. Law [sections] 88(2)(e) (McKinney 1988). The Senate never denied the existence of such statistical or factual tabulations. See Brief for Respondent-Appellee at 11, Weston, 643 N.E.2d 1071 (No. 6931-92) (arguing that because section 88 of the Public Officers Law does not identify the material requested by the petitioners, "statistical and factual tabulations of such requested materials are not available under FOIL). The Weston petitioners did not claim that the material they sought from the Legislature appeared in any "internal or external audits." See Weston, 643 N.e.2d at 1073 (noting petitioners' contention that the information sought was "statistical or factual tabulations").
(66) Weston, 643 N.E.2d at 1072-73 (emphasis added) (quoting N.Y. Pub. Off. Law [sections] 88(2)(e) ( McKinney 1988).
(67) 389 N.Y.S.2d 423 (App. Div. 1976).
(68) See supra note 44 and accompanying text (discussing Dunlea).
(69) Because there is no case law construing Public Officers Law section 88(2)(e) after the 1977 amendment of FOIL, the Weston petitioners used the analogous Dunlea. See Brief for Petitioners, supra note 14, at 16-17. Dunlea construed section 88 as it applied to "agencies" during the 1974-1977 period before FOIL's amendment. See Dunlea, 389 N.Y.S.2d at 424. Thus, while the petitioner in Dunlea was seeking information under FOIL from the Executive Branch and not the Legislature, the FOIL request was subject to the original FOIL format requiring that all "agencies" produce only enumerated items. See id. at 425 (holding the statutory language to be "mandatory ... as to those items required to be disclosed"). As previously noted, in Weston, the Court of Appeals cites Dunlea in its opinion. See Weston, 643 N.E.2d at 1073.
(70) See Dunlea, 389 N.Y.S.2d at 424-25 (citing N.Y. Comp. Codes & Regs. tit. 9, [sections] 145.1 (1976) and distinguishing opinion from statistical or factual tabulations).
(71) N.Y. Comp. Codes R. & Regs. tit. 9, [sections] 6150.2(d) (1994).
(72) N.Y. Comp. Codes R. & Regs. tit. 9, [sections] 6150.2(d) (1994).
(73) Weston, 643 N.E.2d at 1073.
(74) N.Y. Pub. Off. Law [sections] 88(2)(e) (McKinney 1988).
(75) N.Y. Legis. Law [sections] 44 (McKinney 1991).
(76) Id. The argument with respect to Legislative Law section 44 was actually advanced in the brief filed by the New York State Chapter of Common Cause. See Brief for Amicus Curiae, New York State Chapter of Common Cause at 3-6, Weston, 643 N.E.2d 1071 (No. 6931-92). At the national level, Common Cause is a not-for-profit public interest group.
(77) As the Court of Appeals noted in Weston, the 1992 Budget Bill contained an appropriation of $4,000,000 for postage and related printing expenses of Senate members and that such appropriation was subsequently enacted into law. See Weston, 643 N.E.2d at 1073; Act of April 6, 1992, ch. 51, 1992 N.Y. Laws 725, 727.
(78) See Weston, 643 N.E.2d at 1073.
(79) Id. However, the Court of Appeals did not validate the entire Weston FOIL request. The Court of Appeals stated: "[B]ecause copies of ... [Senator Tully's] newsletters and, presumably information on targeted mailings would not be included in such factual tabulations these items are not subject to mandatory [FOIL] disclosure." Id. at 1073-74.
(80) This huge increase in an election year belies the somewhat disingenuous claim that these "public interest" mailings are "educational" as opposed to a phenomenon driven by political forces and a desire of incumbents to retain their seats. For other sources noting similar large increases in publicly supported "public interest" mail in election years, see New York State Senate Minority Task Force on Legislative Reform, Study of Postal Data, Feb. 16, 1994 (on file with author); Donald Halperin & Franz Leichter, State Senate Republicans and Their Private PAC, Newsday (N.Y.), Apr. 26, 1993, at A40. Also belying the contention that the mailings are to educate constituents is the "bunching" of such mail during an election year just weeks before the black-out. For example, in Senator Tully's case in 1992, 327,726 pieces of a total of 631,902 pieces were "bunched" between September 18, 1992 and October 1, 1992 when the black-out commenced.
(81) See Memorandum from New York State Senate Minority Leader (undated) (on file with author).
(82) Of Course, not only does Senator Tully's 1992 total of 631,902 pieces of bulk mail exclude his publicly supported first class mail, but the total also excludes mail subsidized by his own campaign.
(83) See supra note 8-11 and accompanying text (discussing the mailing limits for senators).
(84) New York's "taxpayer cause of action" pursuant to section 51 of the General Municipal Law allows a taxpayer to recoup for the state treasury public monies that have been improperly spent. See N.Y. Gen. Mun. Law [sections] 51 (McKinney 1991); Murphy v. Erie County, 310 N.Y.S.2d 959, 961 (App. Div.) (holding that taxpayers may seek redress when public property or acts of fraud are at issue), aff'd, 268 N.E.2d 771 (N.Y. 1970). However, as the numerical limits on legislative mailings in New York now appear only in guidelines, it is doubtful that a violation of such guidelines, as clearly occurred with Senator Tully's 1992 mail, would support such a "taxpayer cause of action." See Mesivta of Forest Hills Inst. Inc. v. City of New York, 448 N.E.2d 1344, 1345 (N.Y. 1983) (finding that taxpayer actions must stem from waste of public property or funds expended for illegal purposes); supra notes 8-11 and accompanying text (discussing the limits on bulk mail, first class stamps, and district wide newsletters).
Another approach, which may now have more promising possibilities because of a recent, but not publicized, Court of Appeals opinion, is to attack not the amount, but the content of such public interest mailings as unconstitutional expenditures of state funds under the New York State Constitution which prohibits expenditures of public funds for private purposes. See N.Y. Const. art. VII, [sections] 8, para. 1; Schultz v. New York, 654 N.E.2d 1226, 1230 (N.Y.) (upholding a constitutional claim that a state agency improperly printed and distributed, at public expense, a newsletter promoting a partisan political position), cert. denied, 116 S. Ct. 382 (1995). Historically, courts have been unwilling to consider the partisan content of political mail financed by taxpayer dollars, noting that "political questions" are not for the judiciary. Compare Modlewski v. Conte, No. 6642-92 (N.Y. Sup. Ct. Feb. 1, 1992) (denying an Assembly candidate's application to preliminarily enjoin an incumbent Assembly member's newsletter alleged to be an unconstitutional expenditure of state funds), with Stem v. Kramarsky, 375 N.Y.S.2d 235, 240 (Sup. Ct. 1975) (granting an injunction against a state agency to restrain the agency from "promoting, campaigning or otherwise acting to achieve passage of" a proposed amendment to the New York State Constitution). However, in Schulz, the Court of Appeals indicated its willingness to consider a constitutional attack to the content of an incumbent's publicly supported newsletters. See Schultz, 654 N.E.2d at 1231. In Schulz, a taxpayer and a 1994 candidate for Governor of New York on the Libertarian line challenged the constitutionality of a 1992 newsletter sent by former Governor Mario Cuomo. See id. at 1230. Holding that "[the newsletter] goes well beyond simply conveying information on a political issue ... [and] is an unequivocal promotion of a partisan political position," the Court of Appeals remanded to the trial court that portion of the Schulz action dealing with the Cuomo newsletter. Id. at 1231-32. More recently, the Appellate Division for the Third Department held that a complaint stated a valid cause of action for the unconstitutional expenditure of state funds against the State Comptroller because the complaint specifically alleged that the Comptroller expended public resources to distribute an article advocating the passage of a state constitutional amendment. See Schulz v. McCall, 632 N.Y.S.2d 883, 884-85 (App. Div. 1995); see also Schultz v. McCall, 652 N.Y.S.2d 854, 855 (App. Div. 1997) (holding that, although the suit was not a "taxpayer cause of action," the Comptroller should continue to be enjoined from expending public resources for a private purpose).
Interestingly, the public now appears more sensitive to the political content of public interest mailings. See, e.g., Liam Pleven, Mail Attack Stirs Counterattack, Newsday (N.Y.), Feb. 15, 1996, at A8 ("Legislative mailings are rarely impartial, and both Republicans and Democrats in Albany have been accused of using newsletters and other mail for their political benefit.").
(85) However, some have suggested that New York senators, particularly those on Long Island where Senator Tully's district is located, are still abusing the mailing privilege. See Liam Pleven, Albany Pols Spend Big on Mailings, Newsday (N.Y.), Jan. 28, 1996, at A20 (finding that state legislators from Long Island expended more than one million dollars out of the five million dollars available for all mailings from Legislature).
(86) Until 1994, the total of a Senator's pieces of mail and cost thereof were broken down into those by a Senator and those by his or her committee, reflecting the fact that the mailings may be charged to an individual Senator or to an individual senator's committee. See supra note 8-11 and accompanying text (discussing the allotments for individual senators and committee chairpersons). According to Steven Sloan, in 1994 the Senate changed its reporting methods, aggregating the individual and committee totals. Telephone Interview with Steven Sloan, Secretary of the New York State Senate (Nov. 7, 1995). In the above table, the author has consolidated Senator Tully's individual and committee totals.
(87) "Total Cost" is the cost of postage alone and excludes soft costs. Postage for bulk-mail is approximately 16.5 cents per piece. See Memorandum from New York State Senate Minority Leader (undated) (on file with author). Thus, postage costs alone for a district-wide mailing would be approximately $16,500 for an average sized district of 100,000 households. Other costs for a district-wide mailing would include $1200 for maintaining and generating mailing lists, $4000 for printing, $1200 for attaching labels, and $3000 for related personnel, research, writing, graphics, and typesetting, bringing the total costs of a district-wide mailing to approximately $25,900. See id.
(88) See supra note 79 and accompanying text (discussing the holding of Weston).
(89) Although it sought information only on Senate mailings, Newsday apparently used Weston in its study of how Senators from Long Island used a disproportionate amount of the $5.62 million spent by the entire Senate on "public interest" mailings. See Pleven, supra note 85, at A20.
(90) See supra note 12 and accompanying text (discussing the Senate guidelines).
(91) See S. 35442, 216th Sess. (N.Y. 1993). Because of a disagreement with the Assembly over whether the "black-out" on such mailings should run from the general election or the primary, the bill did not become law. See George Pataki, Lawmakers Do Abuse Mail Privileges, Gannett, July 19, 1993, at 7A, available in LEXIS, Asiapc Library, Gns File (discussing the debate surrounding the Pataki bill). Then Senator Pataki's 1993 bill would not only have formalized the "black-out" but lengthened it from 30 days to 90 days before a general election or primary. See S. 35442, 216th Sess. (N.Y. 1993). As pointed out by the Feerick Commission, several states, including California, Wisconsin, and Connecticut, have specific "black-out" laws. See Evening The Odd: The Need to Restrict Unfair Incumbent Advantage, in Government Ethics Reform, supra note 5, at 210, 220-21. These laws range from a three month "black-out" in Connecticut to a complete prohibition in California whose law states that "[n]o newsletter or mass printing shall be sent at public expense." Id.
(92) See Sack, supra note 4, at 48 ("`Since 1986, state legislators have been more likely to be indicted than to lose a general election.'" (quoting Julian Palmer, former Executive Director of New York State Common Cause)).
(93) See Charles Fried, Forward Revolutions?, 109 Harv. L. Rev. 13, 14-15 (1995) (discussing the "revolutionary" attempt by states to secure term limits). But see United States Term Limits, Inc. v. Thornton, 115 S. Ct. 1842 (1995) (invalidating an amendment to the Arkansas Constitution, which would have limited its United States Senators to two terms and its Representatives to three terms, as violative of the Qualifications Clause). However, it is not unconstitutional for a state or a political subdivision to limit terms within its own borders. See Johnathan Mansfield, A Choice Approach to the Constitutionality of Term Limitation Laws, 78 Cornell L. Rev. 966, 967 n.6 (1993).
(94) See Fried, supra note 93, at 15 (noting the necessity for an amendment to the federal constitution that authorizes term limits).
(95) See Leon Lazer, The Term Limits Case, 12 Touro L. Rev. 373, 374 n.7 (1996) (discussing the Pataki proposal for term limits).
(96) While not involving an incumbent, the embroglio over the ultimately successful attempt of Steve Forbes and Patrick Buchanan to place their names on the New York ballot for the 1996 New York presidential primary is instructive. Regrettably, New York is known for its Byzantine election laws which, whether in a presidential primary or a primary against an incumbent legislator, have picayune and onerous signature-gathering requirements, making it extremely difficult to mount a successful primary. See Gail Collins, The Unmaking of a Primary, N.Y. Times, Mar. 10, 1996, at A14 (noting the various incidental violations causing the rejection of numerous signatures and candidates); Editorial, New York's Partial Primary, N.Y. Times, Mar. 2, 1996, at A14 (illustrating the "unfairness of the State Republican Party's onerous petition rules" during state primaries). In Rockefeller v. Powers, 78 F.3d 44 (2d Cir. 1996), the United States Court of Appeals for the Second Circuit held that New York's election laws regarding signature gathering placed an impermissible burden on First Amendment rights, thus sustaining the challenges of Forbes and Buchanan. See id. at 45. It remains to be seen whether this decision will have a spillover effect which would persuade the New York Legislature to reform its laws as they relate to state legislative races. See Clifford Levy, Election Rides for New York Likely to Ease, N.Y. Times, Mar. 7, 1996, at B1 (discussing proposals to reduce the hurdles for candidates to sign onto an election ballot). In 1996, New York Governor Pataki proposed legislation that would relax New York's overly strict signature-gathering requirements. See Ken Moritsuga, Pataki Backs Easier Ballot Access, Newsday (N.Y.), June 14, 1996, at A21 (describing a proposal by Governor Pataki which would make it easier for candidates to be placed on the election ballot); Editorial, Mr. Pataki's Election Reform, N.Y. Times, June 17, 1996, A14 (discussing the advantages of reform and indicating additional areas where reform is needed). Acting on this proposal by Governor Pataki, New York recently enacted legislation which amended the election law and eased the signature-gathering requirements. See Act of December 1, 1996, ch. 709, 1996 McKinney's Session Laws 708. But see Editorial, Backtracking on Ballot Reform, N.Y. Times, Apr. 11, 1997, at A28 (criticizing the proposed regulations for the new election law because the regulations burden candidates with additional signature-gathering requirements.).…