New York Veteran Police Ass'n v. New York City Police Department Article I Pension Fund

— Order and judgment (one paper) of the Supreme Court, New York County (Alvin Klein, J.), entered November 18, 1981, denying petitioner’s application for an order compelling respondents to provide access to the names and addresses of all retirees of the New York City Police Department currently receiving pensions and annuities, and dismissing the petition is reversed, on the law, and the petition is granted, without costs. Petitioner, the New York Veteran Police Association (the Association), is a not-for-profit corporation, organized under the laws of New York in 1905. Its primary purpose is to provide its members, retired police officers, with services and information concerning pensions and other matters of common interest. Until 1978, the Association had been given regular access to the names and addresses of retired and retiring New York City police officers from the respondents, the New York City Police Department Article I and Article II Pension Funds. After that year the respondents ceased to provide such information to the petitioner. The Association requested this information from the records access officer of each respondent pursuant to the Freedom of Information Law (Public Officers Law, §§ 84-90). These requests were denied on the ground that compliance would invade the privacy of retired police officers and their families and might endanger their lives and safety. In the CPLR article 78 proceeding, Special Term denied the relief sought for the “safety” reasons given by respondents. It also cited as grounds for the denial that the Association “apparently uses this address list to solicit new members and sell police-related goods” and “that it has been the practice of petitioner to permit ‘outsiders’ access to the lists provided”. The record, however, before Special Term demonstrated that the lists in the possession of the Association had been safeguarded. Also a transgression which may have occurred by an outside fund-raising agency once used by the Association, cannot fairly be imputed to the Association. The contract with that agency was promptly terminated by the petitioner (as the respondents’ own evidence indicates) when the complaints were made known to petitioner. The fact that the petitioner may be attempting to expand its membership through solicitation of those retirees on the lists maintained by respondents does not make out a showing of “fund raising” on the part of petitioner. “As a nonprofit organization the Association cannot have as its purpose a design to reap a ‘pecuniary profit or financial gain’ (Not-For-Profit Corporation Law, § 102, subd [a], pars [5], [10]), so that any commercial venture in which it engaged would have to serve an end which is 773 not profit oriented. And, although it appears that until now New York courts have not expressly dealt with the question, we do not view dues solicitation as a form of fund-raising within the meaning of the Freedom of Information Law. Inherent in the nature of the dues solicitation here are First Amendment privileges. The First Amendment ‘rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public’ (Associated Press v United States, 326 US 1, 20), and ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people’ (Roth v United States, 354 US 476, 484). Presumably, any sums realized from the collection of dues from these retirees would be used to defray the costs of gathering and disseminating information concerning their pensions, as well as the expenses of any lobbying efforts on their behalf and, if necessary, the maintenance of lawsuits to protect their interests. A balancing of interests, such as has been undertaken by the Federal courts in interpreting the Federal Freedom of Information Act (see Wine Hobby USA v United States Internal Revenue Serv., 502 F2d 133; Disabled Officer’s Assn, v Rumsfeld, 428 F Supp 454), would compel the conclusion that dues solicitation is merely a device to achieve the primary and acceptable purpose of information distribution.” (Matter of New York Teachers Pension Assn, v Teachers’ Retirement System of City ofN. Y., 71 AD2d 250, 256; emphasis added.) Subdivision 2 of section 87 of the Public Officers Law provides that each agency shall make available to the public for inspection and copying all records, with certain limited exceptions. The courts have consistently ruled that the Legislature intended a liberal approach to Freedom of Information Law provisions (Miracle Mile Assoc, v Yudelson, 68 AD2d 176, mot for lv to opp den 48 NY2d 706), and statutory exemptions from disclosure must be narrowly construed to allow maximum access (Matter ofDunlea v Goldmark, 54 AD2d 446, 449, affd 43 NY2d 754). The only point raised by respondents which could feasibly support their nondisclosure is the defense that such disclosure might endanger the lives of the retired police officers. However, such a contention is without support in the record below and is bolstered completely by speculation. As noted, the requested information had been made available to petitioner up until 1978 and no incident has been set forth by respondents involving danger to an officer from such disclosure. In a case where pistol license applications were permitted to be inspected and the same contention of potential danger upon disclosure was made, the court stated: “respondent argues that serious harm might ensue if the records were open to inspection. He speculates that criminals will spend their diurnal hours at police stations and county clerks’ offices searching for likely ‘targets’ who may then be nocturnally attacked for their weapons or those valuables the weapons were carried to safeguard. This suggestion is at best speculative; the ordinary mugger may generally prefer the little old lady with a string handbag to the subject lethally armed with a loaded pistol. But even if this were not true, the Legislature must have been deemed to have considered the risks, and to have determined that the merits of disclosure outweighed the dangers.” (Matter ofKwitny v McGuire, 102 Mise 2d 124, 126, affd for reasons of Wallach, J., 77 ÁD2d 839, affd for reasons stated in opn of Wallach, J., 53 NY2d 968; emphasis added.) Concur — Carro, Asch and Milonas, JJ.