New York's Freedom from Information Law: Disclosure of Public Costs of a New York Senator's "Public Interest" Mailings

Article excerpt

I. Introduction

[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. …