Opinion 93-32

CONFLICTS OF INTEREST -- Financial Disclosure (authority of State Comptroller to obtain access to annual financial disclosure statements)

MUNICIPALITIES -- Officers and Employees (authority of State Comptroller to obtain access to annual financial disclosure statements)

STATE COMPTROLLER -- Powers and Duties (municipalities - authority to obtain access to annual financial disclosure statements)

STATE CONSTITUTION, ARTICLE V, §1; GENERAL MUNICIPAL LAW, §§33, 34, 811, 813; PUBLIC OFFICERS LAW, §§87, 89: In connection with an examination into the accounts and financial affairs of a municipality, the Comptroller, pursuant to General Municipal Law, §§33 and 34, may obtain access to annual financial disclosure statements filed with the local board of ethics by municipal officers and employees for purposes of obtaining information relative to potential conflicts of interest.


You ask whether the State Comptroller may obtain copies of annual financial disclosure statements filed with a local board of ethics by municipal officers and employees in accordance with the requirements of General Municipal Law, article 18 (§800 et seq.). If so, you ask whether our request for these documents is subject to the Freedom of Information Law (Public Officers Law, §84 et seq.). The statements are needed in connection with an examination into the accounts and financial affairs of the municipality for the purpose of obtaining information relative to potential conflicts of interest. The municipality in question has offered to provide the statements, with certain information redacted and for a copying fee, pursuant to the Freedom of Information Law.

Article V, §1 of the State Constitution authorizes the Legislature to assign to the State Comptroller certain powers and duties, including the "supervision of the accounts of any political subdivision of the state". The State Legislature has exercised this delegation of authority, in part, in sections 33 and 34 of the General Municipal Law.

Section 33 provides that the Comptroller shall cause the accounts of officials of municipal corporations to be inspected and examined for such periods as the Comptroller shall deem necessary. Section 34 further provides that the Comptroller shall have power to examine into the financial affairs of municipal corporations, and to compel the attendance of persons for purposes of the examination, the production of books and papers, and the taking of testimony under oath (see Levitt v Wanamaker, 12 AD2d 149, 209 NYS2d 75; see also State Finance Law, §9). Based on the broad grant of authority conferred upon the Comptroller by sections 33 and 34, we have previously concluded that the Comptroller can conduct an examination to determine the existence of conflicts of interests of officials of a municipality and to request information reasonably related to the subject matter of the inquiry (1991 Opns St Comp No. 91-60, p 162; see also 1991 Opns St Comp No. 91-2, p 5; Ronan v Levitt, 73 Misc 2d 35, 38, 341 NYS2d 176, 180, affd 42 AD2d 10, 344 NYS2d 624, lv denied 33 NY2d 514, 347 NYS2d 1027).

Pursuant to article 18 of the General Municipal Law, the governing boards of counties, cities, towns and villages having populations of 50,000 or more must, and the governing boards of other municipalities may, provide for annual financial disclosure by certain of their officers and employees (General Municipal Law, §§810, 811, 812). Since the sole requirement pertaining to the content of annual financial disclosure statements is that they "assure disclosure ... of financial information" by covered officers and employees (see General Municipal Law, §811[1][a]), information in the statements is reasonably related to determining the existence of conflicts of interest (see General Municipal Law, §§800[2],[3], 801, 802, 805-a[1]; Opn No. 91-2, supra). Therefore, we believe that the Comptroller, pursuant to General Municipal Law, §§33 and 34, can request the production of annual financial disclosure statements required in connection with an examination. In the event our request is not complied with, we believe the Comptroller could compel the production of the statements by subpoena (General Municipal Law, §34; State Finance Law, §9; see, e.g., Anheuser-Bush Inc. v Abrams, 71 NY2d 327, 525 NYS2d 816; Doe, M.D. v Office of Professional Medical Conduct of the New York State Department of Health, 161 AD2d 123, 554 NYS2d 549, lv denied 77 NY2d 801, 566 NYS2d 586; All-Waste Systems Inc. v Abrams, 155 AD2d 401, 547 NYS2d 77; City of Albany Industrial Development Agency v New York State Commission on Government Integrity, 144 Misc 2d 342, 544 NYS2d 936; cf. Ward Telecommunications and Computer Services Inc. v State, 42 NY2d 289, 397 NYS2d 75).

Under the Freedom of Information Law, an agency may deny access to certain records (Public Officers Law, 87[2]) and may impose a fee for copying records (Public Officers Law, §87[1][b][iii]). Further, pursuant to General Municipal Law, article 18, while annual financial disclosure statements are generally available to the public, certain categories of information in the statements are not subject to public inspection (General Municipal Law, §§811[c], 813[18][a][1]). As noted, however, the Comptroller's right to access the annual financial disclosure statements is derived from sections 33 and 34 of the General Municipal Law and not from the Freedom of Information Law or article 18 of the General Municipal Law. Therefore, the procedural requirements and limitations on access to records in the Freedom of Information Law, and the restrictions on public access to certain categories of information in article 18 of the General Municipal Law are inapplicable to this Office (see Levitt v Wanamaker, supra). In this regard, we note that the enactment of the Freedom of Information Law was not intended to limit or abridge any other available rights of access of any party to records (Public Officers Law, §89[6]; see St. Joseph's Hospital v Axelrod, 74 AD2d 698, 425 NYS2d 669, app den 49 NY2d 706, 428 NYS2d 1026; but see Xerox v Town of Webster, 65 NY2d 131, 490 NYS2d 488).

Accordingly, we conclude that, in connection with an examination into the accounts and financial affairs of a municipality, the Comptroller, pursuant to General Municipal Law, §§33 and 34, may obtain access to annual financial disclosure statements filed with the local board of ethics by municipal officers and employees for purposes of obtaining information relative to potential conflicts of interest.

December 9, 1993
Sharon Lauer-Wolf
Deputy State Comptroller