New York Post Corp. v. Moses

12 A.D.2d 243, 210 N.Y.S.2d 88, 1961 N.Y. App. Div. LEXIS 12928
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJanuary 31, 1961
StatusPublished
Cited by8 cases

This text of 12 A.D.2d 243 (New York Post Corp. v. Moses) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New York Post Corp. v. Moses, 12 A.D.2d 243, 210 N.Y.S.2d 88, 1961 N.Y. App. Div. LEXIS 12928 (N.Y. Ct. App. 1961).

Opinion

Stevens, J.

This is an appeal from an order entered June 29, 1960 which dismissed an article 78 proceeding in" which petitioner sought to inspect certain files, records and minutes of respondents (hereinafter called “ Authority ”) for 10 years past.

The court in dismissing the petition concluded that section 66 of the Public Officers Law and section 51 of the General Municipal Law do not apply, and held that the petitioner had not shown itself to have any special interest or such clear legal right as would entitle it to the relief sought. The court said also that by virtue of the nature of the Authority, absent any language in the statute under which it was created, giving to the public a right of inspection, petitioner’s claim could not be sustained under any other statute.

On appeal, petitioner (herein called Post”) urges that:

(1) Section 66 of the Public Officers Law expresses a strong legislative policy and gives it a clear statutory right to inspect the records sought unless the statute which created the Authority or some other statute specifically forbids such an inspection.
(2) Authority is a board acting for or on behalf of a municipal corporation and its books and records are public records open to the inspection of any taxpayer, pursuant to the provisions of section 51 of the General Municipal Law.
(3) At common law the right of inspection was given to every citizen and taxpayer and it may be abridged only by an explicit statutory enactment.
(4) Post’s constitutional rights are violated by Authority’s refusal to permit access to its records.

Authority asserts that:

(1) It was not the intention of the Legislature in creating Authority to grant a right of inspection of its files to the public.
(2) The files, books and records sought are not public records or kept in a public office within the meaning of section 66 of the [246]*246Public Officers Law. At most, such records should be available only to those who can show a specific interest therein, and Post cannot demonstrate such interest.
(3) Assuming arguendo such records are subject to section 66 of the Public Officers Law, that section does not authorize a general inspection of books and records.
(4) Authority is not subject to the provisions of section 51 of the General Municipal Law.
(5) The records of Authority are not subject to inspection under the common law.
(6) No constitutional question is presented and this court, in the exercise of its discretion, should affirm the order below.

Section 66 of the Public Officers Law, states: “ A person, having’ the custody of the records or other papers in a public office, within the state, must, upon request, and upon payment of, or offer to pay, the fees allowed by law * * * diligently search the files, papers, records, and dockets in his office; and either make one or more transcripts therefrom, and certify to the correctness thereof, and to the search, or certify that a document or paper, of which the custody legally belongs to him, can not be found. ’

In Matter of Jordan v. Loos (204 Misc. 814, affd. 283 App. Div. 983) petitioner, a person not aggrieved nor with any personal interest in the outcome, instituted an article 78 proceeding for an order in the nature of mandamus to compel the New York State Board of Parole to make available to her for inspection certain parole records of a prisoner. The court considered section 66 of the Public Officers Law, but pointed out “ the courts of this State have not held that all records kept by public officers are ‘ public records ’ as regards right of inspection ” (pp. 816-817). It noted “ [sjection 51 of the General Municipal Law contains a provision with reference to the right to inspect public records, which is quite analogous to the provisions of section 66 of the Public Officers Law” (p. 817). The court indicated that inspection will be denied where it is so provided by statute or rules made pursuant to a power conferred by statute, or where inspection appears clearly contrary to the legislative intent, or where in the discretion of the court inspection would be contrary to public policy. The court quoted with approval the language of Matter of Stenstrom v. Hartnett (131 Misc. 75, 77, affd. sub nom. People ex rel. Stenstrom v. Hartnett, 224 App. Div. 127, affd. 249 N. Y. 606). “In the absence of statute the nature and purpose of the record, and, possibly, custom and usage, must be the guides in determining the class to which it [247]*247belongs.” The court concluded (p. 821) that both public policy “ and legislative intent as expressed in statute ” required a denial of the right of inspection and that, insofar as it had discretion, such inspection should be denied.

In Matter of Walker v. Watson (201 Misc. 556, 557) petitioner, a taxpayer, sought an order requiring the Municipal Civil Service Commission to permit him to inspect ‘‘ all books, accounts and papers in its office which set forth the names, positions and qualifications of occupants of exempt positions in the city government ’ etc. Respondent contended that it was not a ‘‘ city department” within the meaning of section 894 of the New York City Charter, and that the papers sought were not “ public records ’ ’ within the meaning of section 66 of the Public Officers Law. Petitioner contended that he had an absolute statutory right to the relief sought.

The court (Mr. Justice Walter) addressed itself “to those broader aspects of the matter, rather than to the somewhat technical questions whether respondent is or is not a ‘ city department ’, within the meaning of section 894 of the City Charter, and whether the papers sought are ‘ public records ’ in a strictly legal sense ” (p. 557). Mr. Justice Walter noted that the papers before him were “ disappointingly lacking in precise information as to how statements of the qualifications of persons appointed to exempt positions came into being ” (p. 557). The court concluded that no matter how such papers came into existence, and though it was a little difficult to see how the declared aim of the petitioner would be helped, that inspection should be granted. The Appellate Division, First Department, modified on other grounds by ‘‘ granting the application only to the extent of directing the municipal civil service commission to permit petitioner to examine form P. 23 filed by the appointing officer of an exempt employee pursuant to rule IV of the rules of the municipal civil service commission only for specified persons, the names of such persons to be set forth in the order settled hereon on notice and, as so modified, affirmed, without costs.” (280 App. Div. 760.)

And in Matter of Blandford v. McClellan (173 Misc. 15) where there was an application to require respondent to exhibit a record of a certain motor vehicle accident, the court observed “ [b]oth section 66 of the Public Officers Law and section 51 of the General Municipal Law are general laws upon which respondent has no right to infringe.” The court refused to base its decision upon section 51, and “held that such of respondent’s records as are public records must be produced pursuant [248]

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12 A.D.2d 243, 210 N.Y.S.2d 88, 1961 N.Y. App. Div. LEXIS 12928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-york-post-corp-v-moses-nyappdiv-1961.