IN RE: Patrick M. SNYDER

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Supreme Court, Appellate Division, Third Department, New York.


Decided: May 26, 2005

Before:  CREW III, J.P., CARPINELLO, MUGGLIN, LAHTINEN and KANE, JJ. Patrick M. Snyder, Cortland, appellant pro se. Eliot Spitzer, Attorney General, Albany (Frank K. Walsh of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Malone Jr., J.), entered June 28, 2004 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Petitioner commenced this CPLR article 78 proceeding seeking to compel respondent to provide information under the Freedom of Information Law (hereinafter FOIL) (see Public Officers Law art. 6) and the Open Meetings Law (hereinafter OML) (see Public Officers Law art. 7) pertaining to individuals who sought the position of Cortland County Judge.   That position became vacant before the expiration of a term and, thus, the Governor had the authority, with the advice and consent of the Senate, to fill the vacancy by appointment until the next election (see N.Y. Const., art. VI, § 21).   Under such circumstances, individuals seeking the appointment are screened by a Judicial Screening Committee established by the Governor in Executive Order No. 10 (see 9 NYCRR 5.10), which has the stated purpose of attempting “to ensure that judicial officer appointments are of the highest quality” (9 NYCRR 5.10).   In a procedure similar to other jurisdictions that utilize forms of screening for judicial candidates, reports of respondent remain confidential except as regards the individual appointed by the Governor (see 9 NYCRR 5.10 [2][d];  cf. Public Citizen v. United States Dept. of Justice, 491 U.S. 440, 443-445, 109 S.Ct. 2558, 105 L.Ed.2d 377 [1989];  Guy v. Judicial Nominating Comm., 659 A.2d 777, 779-780 [Del.1995], appeal dismissed 670 A.2d 1338 [1995];  City of Tucson v. Superior Court, 167 Ariz. 513, 514-517, 809 P.2d 428, 429-432 [1991] ).

The Governor eventually appointed Julie Campbell to fill the vacant judicial position.   Petitioner, an attorney from Cortland County who had not sought the judicial position, made a FOIL request to respondent seeking information about candidates who had been rated highly qualified and any communication between respondent and Campbell that had occurred following Campbell's appointment.   Respondent stated in a letter from its executive director that there were “not any documents which list those candidates ․ rated as very qualified” and there was no post-appointment correspondence or documentation regarding conversations between respondent and Campbell.   The letter also quoted from Executive Order No. 10 that “[a]ll records and deliberations of, and all communications to, the Judicial Screening Committee with respect to a candidate's qualifications shall be held in confidence” (9 NYCRR 5.10[2][d] ).

Petitioner commenced this proceeding and respondent made a preanswer motion to dismiss for failure to state a cause of action.   Respondent argued that it was not subject to FOIL or OML because it served only in an advisory capacity and also that, even if FOIL and OML applied, the requested records were exempt from public disclosure.   Supreme Court granted respondent's motion, finding that respondent's role is merely advisory and, thus, not within the scope of FOIL or OML (4 Misc.3d 622, 780 N.Y.S.2d 874 [2004] ).   Petitioner appeals.

 The definition of an agency under FOIL includes a committee “performing a governmental ․ function” (Public Officers Law § 86 [3] ) and, similarly, OML applies to public bodies “performing a governmental function” (Public Officers Law § 102[2] ).   A committee providing purely an advisory role may not be performing a governmental function within the meaning of FOIL or OML (see Matter of Perez v. City Univ. of N.Y., 9 A.D.3d 310, 313, 780 N.Y.S.2d 325 [2004], lv. granted 4 N.Y.3d 706 [2005];  cf. Matter of Smith v. City Univ. of N.Y., 92 N.Y.2d 707, 714, 685 N.Y.S.2d 910, 708 N.E.2d 983 [1999];  Goodson Todman Enters. v. Town Bd. of Milan, 151 A.D.2d 642, 643, 542 N.Y.S.2d 373 [1989], lv. denied 74 N.Y.2d 614, 547 N.Y.S.2d 848, 547 N.E.2d 103 [1989];  Matter of Daily Gazette Co. v. North Colonie Bd. of Educ., 67 A.D.2d 803, 804, 412 N.Y.S.2d 494 [1979] ).   The mere attachment of the label “advisory” to a body or committee is insufficient to circumvent FOIL and OML. Instead, the entity must be closely examined by various criteria that reflect whether it exercises a governmental function, including “the authority under which the entity was created, the power distribution or sharing model under which it exists, the nature of its role, the power it possesses and under which it purports to act, and a realistic appraisal of its functional relationship to affected parties and constituencies” (Matter of Smith v. City Univ. of N.Y., supra at 713, 685 N.Y.S.2d 910, 708 N.E.2d 983).   Moreover, in light of the purpose of these statutes and the important policies they foster in an open society, the statutes are liberally construed in favor of disclosure of information (see Matter of Gould v. New York City Police Dept., 89 N.Y.2d 267, 274-275, 653 N.Y.S.2d 54, 675 N.E.2d 808 [1996];  Matter of Gordon v. Village of Monticello, 87 N.Y.2d 124, 126-127, 637 N.Y.S.2d 961, 661 N.E.2d 691 [1995] ).

 Here, the appointment of a county-level judge to fill an unexpired term is vested by the N.Y. Constitution within the discretion of the Governor.   In an effort to enhance public confidence in the integrity of the judicial selection process, the Governor chose-as had prior Governors-to establish Judicial Screening Committees by Executive Order.   The Screening Committees elicit information about potential judicial appointees and, to ensure candid input about and consideration of such individuals, confidentiality is a recognized necessity of the process (see e.g. Matter of Baumgarten v. Koch, 97 Misc.2d 449, 451-452, 411 N.Y.S.2d 487 [1978] ).   Respondent's role is limited to providing the Governor with the names of highly qualified candidates.   Respondent does not offer advice about which of the candidates it may prefer.   While the Governor may select an individual deemed by respondent as highly qualified, other possible options include appointing no one (waiting instead for the next general election), asking respondent to screen additional candidates, and recruiting a candidate or candidates for consideration by respondent.   Under the narrow circumstances implicated herein, we are not persuaded that the information sought by petitioner must be disclosed (see id.).

ORDERED that the judgment is affirmed, without costs.



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