On May 4, 2018, the Government Justice Center filed an amicus curiae brief on behalf of the Empire Center for Public Policy in Police Benevolent Association of New York State, Inc. v. State of New York, et al., Case No. 525746 in the Third Department Appellate Division.

The case relates to Freedom of Information Law (FOIL) requests made by the Police Benevolent Association (PBA) to certain SUNY schools that employed campus police officers under Section 211 waivers. Under Section 212 of the state Retirement and Social Security Law, state and local government retirees under 65 who return to work for the government are subject to an earnings limit, which means their pension payments are halted after the limit is reached in any given year. Under Section 211 of that law, the earning limit can be waived for two-year periods.

Among other things, a request for approval of a 211 waiver must include detailed written reasons why, after undertaking extensive recruiting efforts, there are no qualified non-retired persons to perform the job duties. The entity responsible for approving the waiver must make a finding based on the evidence.

The PBA requested candidate job application information for jobs filled by 211 waiver recipients to evaluate the recruiting efforts underlying the 211 waiver determinations. The respondent agencies, however, withheld resumes, applications and correspondence of job applicants because disclosure would be unwarranted invasions of personal privacy.

The Appellate Division previously remanded the matter to the Supreme Court review in camera records entirely withheld from disclosure by the agencies. The Appellate Division correctly determined that the records should be disclosed with certain personally identifying information redacted.

Upon review, the Supreme Court determined that no amount of redacting could avoid unwarranted invasions of personal privacy. The Supreme Court, however, erred in determining what may be “unwarranted” in the context of the job application records requested. It further erred in determining that no amount of information could be redacted without causing unwarranted invasions of personal privacy.

Empire Center obtains and posts statewide 211 waiver information on SeeThroughNY.net to shed light on waiver details so that taxpayers and elected officials can evaluate whether the 211 waiver law is working in the public’s interest. 211 waivers may hinder agencies from engaging in proper workforce succession planning and tapping into a larger workforce labor pool, potentially distorting New York’s labor market by reducing job and promotional opportunities for younger workers. Thus, New Yorkers have a vested interest in 211 waiver decisions.

In its brief, Empire Center argued that to be consistent with FOIL’s intent and purpose, the job application records should have been released in their entirety. If necessary, redactions should be as limited as possible—to information such as names, social security numbers, telephone numbers and home addresses, and not education and work histories.

Oral argument is expected to be scheduled in the court’s September, 2018 term.

Click here to read the full amicus curiae brief.