Opinion
November 21, 2000
Beldock, Levine Hoffman, New York City (Cynthia Rollings and Melvin L. Wolf of counsel), for petitioner.
Michael D. Hess, Corporation Counsel of New York City (James Lemonedes of counsel), for respondent.
This is a petition by Mark Green, Public Advocate of the City of New York, pursuant to section 1109 of the New York City Charter, for a summary judicial inquiry into the actions taken and public statements made by New York City's Mayor, Rudolph Giuliani, concerning Patrick Dorismond's juvenile and criminal record, after the unarmed Dorismond was shot by a New York City police officer, on March 16, 2000.
For a period of several days after Dorismond's death, Mayor Giuliani made repeated statements to the press, disclosing details of Dorismond's alleged criminal record, both as a juvenile and as an adult. According to the Petition, the statements were widely publicized. It is undisputed that at least some of the information made public by the Mayor relates to records which had been sealed pursuant to the Criminal Procedure Law and/or the Family Court Act. There is no indication that any court order was obtained by the Mayor to unseal Mr. Dorismond's records, before their content was publicized.
The Public Advocate alleges that the public disclosure of Mr. Dorismond's juvenile and criminal record was unauthorized, and that other cases involving such disclosure by the Mayor have come to his attention. On that basis, the Public Advocate seeks an inquiry into how the Mayor obtained the information which he made public, whether the information was from sealed records, and whether its release was made without regard to the statutory protection of such records from disclosure under of New York State law, in particular, sections 166 and 375.1 of the Family Court Act and section 160.55 of the Criminal Procedure Law.
Section 1109 of the New York City Charter, pursuant to which the Public Advocate seeks a summary inquiry, provides as follows:
A summary inquiry into any alleged violation or neglect of duty in relation to the property, government or affairs of the city may be conducted under an order to be made by any justice of the supreme court in the first, second or eleventh judicial district on application of the mayor, the comptroller, the public advocate, any five council members, the commissioner of investigation or any five citizens who are taxpayers, supported by affidavit to the effect that one or more officers, employees or other persons therein named have knowledge or information concerning such alleged violation or neglect of duty. Such inquiry shall be conducted before and shall be controlled by the justice making the order or any other justice of the supreme court in the same district. Such justice may require any officer or employee or any other person to attend and be examined in relation to the subject of the inquiry. Any answers given by a witness in such inquiry shall not be used against such witness in any criminal proceeding, except that for all false answers on material points such witness shall be subject to prosecution for perjury. The examination shall be reduced to writing and shall be filed in the office of the clerk of such county within the first, second or eleventh judicial district as the justice may direct, and shall be a public record.
The Mayor has not submitted an affidavit responding to the allegations of the Petition. Appearing by Corporation Counsel, the Mayor contends that the sealing requirements under the Family Court Act and the Criminal Procedure Law do not apply to deceased persons, and seeks dismissal of the Public Advocate's application, arguing that: 1) section 1109 is unconstitutional on its face and as applied; 2) the dispute is beyond the scope of the inquiry permitted by section 1109 because it does not concern municipal corruption or closely related matters; 3) the inquiry is unauthorized because the underlying facts are undisputed and have been publicly addressed; and 4) the dispute is primarily political and/or legal debate and additional factual inquiry would be a waste of judicial and public resources.
No legal authority has been cited in support of this argument. Although there has not been a direct legal pronouncement, available legal authority suggests that sealing requirements and concomitant requirements of a court order for unsealing continue to apply after the death of the subject. See, e.g. Holmes v. De Vincenzo, 163 A.D.2d 594 (2d Dep't 1990); Gray v. State of New York, 130 Misc.2d 65 (Fam.Ct. Monroe Co. 1985); Nassau Co. v. Heine, 80 A.D.2d 640 (2d Dep't), appeal denied, 53 N.Y.2d 607 (1981); People v. Seeley, 179 Misc.2d 42, 53 (Sup.Ct. Kings Co. 1998); Gannett Suburban Newspapers v. Clerk of County Court, County of Putnam, 230 A.D.2d 741 (2d Dep't 1996).
Facial Constitutionality of Section 1109
In considering the Mayor's arguments, the court is guided by "the familiar proposition that enactments of the Legislature, a co-equal branch of government, are presumed to be constitutional; those who challenge statutes bear a heavy burden of proving unconstitutionality beyond a reasonable doubt(see, e.g., Elmwood-Utica Houses v. Buffalo Sewer Auth., 65 N.Y.2d 489, 495)." City of New York v. State of New York, 76 N.Y.2d 479, 485 (1990).
The Mayor contends that section 1109 improperly assigns a role to a Justice of the Supreme Court which constitutes a "public trust," in violation of Article VI, Section 20 of the New York State Constitution. Section 20 (b) (1) prohibits Justices of the Supreme Court from "hold[ing] any other public office or trust except an office in relation to the administration of the courts, member of a constitutional convention or member of the armed forces of the United States or of the state of New York. . . ." N Y Const, Art VI, § 20 (b) ( 1)
The provision for a summary inquiry was first enacted by the state legislature in 1873, and with slight variations has been included in every New York City Charter since that time. Its constitutionality was upheld in Matter of Mitchel v. Cropsey, 177 A.D. 663 (2d Dep't 1917), when a summary inquiry was sought pursuant to the then Section 1534 into changes proposed to be made in the franchises granted by the City of New York to the New York Central Railroad. Mitchel, then Mayor of the City of New York, opposed the inquiry, alleging that Section 1534 was unconstitutional because it conferred "non judicial functions upon justices of the Supreme Court." 177 A.D.2d at 665. The Appellate Division rejected his argument, finding that while the summary inquiry does not involve a judicial proceeding in the sense that it results in a judicial determination, it does nevertheless involve duties which may appropriately be delegated to judicial officers, and requires the Supreme Court to exercise judicial functions, such as determining whether a claim has been stated under the statute, conducting a hearing, ruling on the admissibility of evidence, and exercising contempt powers.
The provision was first enacted as L.1873, c.335, Section 109; was renumbered as section 1534 in the Greater New York Charter of 1897; revised and renumbered in the 1936 Charter as section 889; and, renumbered in 1961 as the section 1109 now in effect.
For its ruling, the Appellate Division in Mitchel relied on Matter of Davies, 168 N.Y. 89 (1901), which raised virtually identical issues. In Davies, the Court of Appeals upheld the constitutionality of Chapter 690 of the Laws of 1899, which authorized the Attorney General of the State of New York, prior to initiating an action alleging unlawful monopolies or restraints of trade, to obtain an order from a Justice of the Supreme Court directing persons mentioned in the application to appear before the Justice to provide testimony and produce documents, which would then be filed in the Office of the County Clerk. Id. at 97. In Davies, as in Mitchel, the statute was challenged as unconstitutional on the ground that it delegated non-judicial duties to Justices of the Supreme Court.
In upholding Chapter 690, the Davies Court concluded that the duties imposed by that statute were of a judicial character, and therefore did not violate a constitutional prohibition on judges exercising non judicial functions:
Thus, the justice is called upon to exercise the judicial function of deciding whether the application conforms to the statute. . . ., the same as is required of him when an application is made for an order of arrest, a warrant of attachment or any other provisional remedy. His duty is not merely clerical but requires the exercise of judgment. Davies, supra, at 103.
The analyses in both Mitchel, 177 AD at 666-7, and Davies, 168 N Y at 104, noted that in order to qualify as such, judicial functions had to be judicial in form as well as purpose, but held that a judicial purpose did not necessarily require a judicial determination. Both courts concluded that, even without a judicial determination, the presentation of testimony before a Justice of the Supreme Court in anticipation of future litigation was not violative of the constitutional prohibition against the exercise of non-judicial functions, because it could be termed incidental to a potential judicial proceeding and was sufficiently related to a cognizable judicial purpose.
Both the Davies and the Mitchel courts recognized that "the line of demarcation" Mitchel, supra at 669, between legislative and administrative functions on the one hand and judicial functions on the other hand, cannot be precisely drawn. Davies, supra, at 102. Both courts pointed out that many traditionally recognized judicial functions, such as the approval of certificates of incorporation, the acknowledgment of conveyances, the solemnization of marriages, the appointment of commissioners of jurors, the investigation of the financial affairs of villages, are close to but fall within that line of demarcation. Davies, supra at 103-106; Mitchel, supra, at 669.
Grand jury proceedings pursuant to Criminal Procedure Law Section 190.85 provide another illustration of traditionally recognized legal proceedings in which the judicial function is outside the conventional mold. Similar in many respects to the summary inquiry authorized by Section 1109, C.P.L. § 190.85 authorizes a grand jury, after investigation initiated pursuant to C.P.L. § 190.55, to issue a report concerning not only criminal but also non-criminal "misconduct, non-feasance or neglect in public office by a public servant," C.P.L. § 190.85 (1) (a) and (1)(b). C.P.L. § 190.85 (1) (c) authorizes the issuance of a grand jury report "[p]roposing recommendations for legislative, executive or administrative action in the public interest based upon stated findings." A grand jury may be empaneled to conduct an investigation into aspects of government operations and issue a report as to its findings. See, e.g. In the Matter of the Report of the August-September 1983 Grand Jury III, Term XI, Suffolk County, New York, 103 A.D.2d 176 (2d Dep't 1984) Essentially, in such grand jury proceedings a Supreme Court justice (along with the prosecuting attorney) is limited to the role of a "legal advisor" C.P.L. § 190.25 (6), who does not preside over the proceedings, but rules on questions of law arising during the conduct of the investigation. The justice reviews the resulting report to ensure that the report is based on the credible admissible evidence presented to the grand jury, and that it provides statutory procedural protections to identified or identifiable persons. Code Crim. Proc. § 253-a, from which C.P.L. 190.85 is derived, has been upheld as a constitutional legislative enactment. In Re Second Report of November, 1968 Grand Jury, 26 N.Y.2d 200 (1970).
Various procedural protections have been built into the grand jury process for the benefit of affected individuals. For example, the court may order that the grand jury report be sealed. C.P.L. § 190.85, subdivisions 3, 4 and 5. However, the Mayor's challenge to Section 1109 is not based on the absence of procedural protections for him.
The Public Advocate is an independently elected official with capacity to sue. Green v. Safir, 174 Misc.2d 400, 406, aff'd 255 A.D.2d 107 (1st Dep't 1998), leave to appeal denied 93 N.Y.2d 882 (1999). He is intended to be "a `watchdog' over City Government and a counterweight to the powers of the Mayor." Id. 174 Misc.2d at 403. The authority of the Public Advocate to petition for a summary inquiry pursuant to Section 1109 exists in tandem with his mandate under the City Charter, Section 24 (f), (g) and (h) to investigate and report on complaints of mismanagement or misfeasance by City agencies.
The function and purpose of a justice of the Supreme Court in presiding over a summary inquiry resulting in a report by the Public Advocate is a judicial function comparable to that of a justice presiding over a grand jury investigation and report pursuant to C.P.L. § 190.85. Moreover, since the inquiry sought in this case focuses on the failure to protect information in sealed court records, it serves a purpose significantly related to the administration of justice in the City's Family and Criminal Courts.
Accordingly, whether the Public Advocate's ultimate objective in seeking a summary inquiry is, as Corporation Counsel presumes, "to pursue a lawsuit against the City" (Respondent's Memorandum of Law, p. 14), or to use the inquiry as a basis for the issuance of a report, City Charter Section 24, the function and purpose of a justice of the Supreme Court in presiding over such an inquiry at the instance of the Public Advocate is cognizably judicial.
The Mayor cites Matter of Richardson, 247 N.Y. 401 (1928), in which the Court of Appeals held that section 34 of the Public Officers Law, permitting the Governor to direct a Justice of the Supreme Court to take evidence in a proceeding for removal of a public officer and to report on the evidence to the Governor, constituted an improper "public trust." The Court concluded that, under the Public Officers Law, the designated Justice was improperly made "the delegate of the Governor in aid of an executive act, the removal of a public officer" ( id., at 402), who was "to obey" "as often as the Governor commands" ( id., at 419), was made a prosecutor, and had his own counsel and assistant counsel, experts and detectives ( id., at 411)
However, this case is distinguishable from Richardson. In contrast to the statute challenged in Richardson, under the summary inquiry provision, the Justice of the Supreme Court is not made the delegate of the Governor, or of any other executive official. Nor does Section 1109 make her a prosecutor, with an investigatory staff of her own.
None of the cases concerning City Charter Section 1109 or its predecessor statutes have treated the court's role as prosecutorial. See Application of Larkin, 58 Misc.2d 206, (Sup.Ct. N Y County, 1968) aff'd, 33 A.D.2d 542 (1st Dep't 1969); Mitchel v. Cropsey, 177 AD 663 (2d Dep't 1917); Greenfield v. Quill, 189 Misc. 91 (Sup.Ct. Kings Co. 1946); Application of Rolnick, N.O.C. 69 N.Y.S.2d 13 (Sup.Ct. Kings Co. 1946); Matter of Summary Inquiry, Into Use of Property, etc. of City of New York, 179 Misc. 505 (Sup.Ct. Bronx Co. 1942); In re Leich, 31 Misc. 671 (Sup.Ct. Kings Co. 1900). This Court interprets the language of Section 1109, "[S]uch an inquiry. . . ., shall be controlled by the justice. . . ." as representing no more than a shorthand reference to the court's inherent power to control the proceedings before her. Gabrelian v. Gabrelian, 108 A.D.2d 445 (2d Dep't) appeal dismissed 66 N.Y.2d 741 (1985); Wehringer v. Brannigan, 232 A.D.2d 206 (1st Dep't 1996), appeal dismissed 89 N.Y.2d 980 (1997).
As the statute and cases cited show, the court's role in the summary inquiry is to preside over a proceeding adversary in form, taking testimony at the instance of both parties, and ruling as to relevancy and reliability under customary rules of evidence.
I conclude that the duties of the Justice under the summary inquiry provision are more akin to those upheld by the Court of Appeals in Davies, and by the Appellate Division in Mitchel, and more consistent with the variety of traditionally permissible judicial roles than those which were struck down in Richardson, and that respondent has not met his burden of showing that section 1109 creates a constitutionally impermissible "public trust." Constitutionality of Section 1109 as Applied
The Mayor further contends that, if a summary inquiry were granted, section 1109 would be unconstitutional as applied, because it would violate the principle of separation of powers. He argues that the summary inquiry sought by the Public Advocate is just, the sort of interference with the details of municipal administration rejected by the Court of Appeals in Jones v. Beame 45 N.Y.2d 402 (1978), and proscribed by the political question doctrine. The court disagrees.
In Jones, the cause of action for a summary inquiry into the conditions of the City zoos, was part of a larger complaint for declaratory and injunctive relief brought by private persons and organizations, concerned with the generally inadequate treatment of animals in municipal zoos as a result of New York City's then fiscal crisis. The Court dismissed the complaint, stating that plaintiffs, no matter how sincerely motivated, could neither utilize the courts to intervene in the fiscal choices made by the City, nor assume the management or operation of administrative agencies.
The appellate decisions in Jones provide little guidance for addressing the questions presented here. While the trial court in Jones sustained as viable the cause of action for a summary inquiry pursuant to City Charter 1109, 86 Misc.2d 832, 842-843, the claim was never separately addressed by the Appellate Division, First Department, 56 A.D.2d 778 (1977), or even mentioned by the Court of Appeals, 45 N.Y.2d 402 (1978). The thrust of both appellate decisions, under the doctrines of standing or justiciability, was that the "judicial process is not designed to or intended to assume the management and operation of the executive enterprise." Jones v. Beame, 45 N.Y.2d at 408. Even if that holding were treated as limiting the scope of Section 1109 in some circumstances, it has no application here, where the summary inquiry is sought with respect to allegations of specific misconduct in relation to specific statutory provisions. See Jones v. Beame, 56 A.D.2d at 779.
Matter of New York State Inspection, Sec. and Law Enforcement Employees, Dist. Council 82, AFSCME, AFL-CIO v. Cuomo, 64 N.Y.2d 233 (1984), also relied on by the Mayor, is equally inapposite. No claim pursuant to Section 1109 of the City Charter was involved in that case. There, employees of a correctional facility sought to enjoin its scheduled closing as a violation of their statutory right to a safe workplace under New York Labor Law. The Court of Appeals dismissed their complaint, holding that the statutory claims were asserted prematurely, and that while the right to a safe workplace was enforceable under the New York Labor Law, it did not extend to the kind of claim asserted by the employees. According to the Court of Appeals, the policy decision of whether to close a correctional facility was a political question left to the Department of Correctional Services as part of the executive branch of government, and was thus non-justiciable.
Here, in contrast to Jones and AFCSME, the Public Advocate is not seeking to order fiscal priorities, or to obtain general oversight of an executive or administrative agency. A decision by the Mayor to release of protected information is not a matter of policy uninhibited by statutory mandate. On the contrary, access to sealed records is carefully regulated by statute. Family Court Act § 166, § 375.1. Criminal Procedure Law Section 160.50, 160.55, 720.35. Rather, the Public Advocate seeks to discover answers to the following questions:
"What were the specific sources of Mr. Giuliani's statements about Mr. Dorismond's prior encounters with the criminal justice system?
What specific records were examined?
For each disclosure, was the information obtained from records of the New York City Family Court, the New York Criminal Court, the New York City Police Department, the New York City Probation Department and/or files of the State Division of Criminal Justice Services (DCJS)?
If so, had these records been sealed by court order or by operation of statute, or both?
Did the records reviewed by the Mayor or others contain codes or other designations indicating that they were subject to seal?
How did Mr. Giuliani obtain this information? Was he assisted in that endeavor by other City or State officials and/or employees, and if so, who were they and how did they obtain the records cited?
Did Mr. Giuliani personally review the files or did he rely on others?
Did the Mayor's public statements misrepresent Mr. Dorismond's history?
Was the Mayor's disclosure of information from sealed records a violation of court orders and/or statutes?
Did the confidentiality of the records terminate once Mr. Dorismond was deceased?
If the Mayor was not entitled to release or disclose sealed records, has the Mayor violated or neglected his duties in relation to the property, government or affairs of the City by releasing information from sealed records in the custody of the City of New York and thereby contravening State law and his oath of office?"
As to the last four questions which call for legal conclusions, the court assumes that the inquiry will only produce evidence as to the answers.
As to the last four questions which call for legal conclusions, the court assumes that the inquiry will only produce evidence as to the answers.
Affidavit of Petitioner Mark Green, dated March 27, 2000, ¶ 24.
These questions do not constitute a free-wheeling general investigation into the Mayor's conduct of his duties or the operations of City agencies, and do not seek to interfere with municipal policy or budget making functions. Instead, they are focused on the facts underlying the Public Advocate's allegations that in publicizing Mr. Dorismond's criminal and juvenile record, the Mayor disregarded the specific provisions and requirements of the Criminal Procedural Law and the Family Court Act governing access to and dissemination of the content of such records. That "a case; may have political overtones, involve public policy, or implicate some seemingly internal affairs of the executive or legislative branches does not. . . . render the matter nonjusticiable"; Gruen v. County of Suffolk, 187 A.D.2d 560, 562 (2d Dep't 1992) citing Matter of Boung Jae Jang v. Brown, 161 A.D.2d 49, 55, quoting People v. Ohrenstein, 153 A.D.2d 342, 411. Nor does it implicate the "political question" doctrine. Id.
Neither does the Public Advocate impermissibly seek an advisory opinion from this court, as the Mayor also contends. Although the Public Advocate seeks information relating to specific questions, he does not specifically request, nor does section 1109 provide for, a decision or opinion by court. It provides for a written record which is filed with the County Clerk. Thus the summary inquiry does not call for an advisory opinion.
Nor can Section 1109 be held invalid because it does not satisfy the criteria for a case and controversy set forth in Article III of the United States Constitution. Under Article III, a petitioner or plaintiff "must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Raines v. Byrd, 521 U.S. 811, 818 (1997). That standing requirement in Federal Court, which is "grounded in the Federal constitutional requirement of case or controversy. . . . [is] a requirement that has no analogue in the State Constitution." Society of Plastics Industry, Inc. v. County of Suffolk, 77 N.Y.2d 761, 772 (1991). The terms of New York City Charter Section 1109, a legislative enactment which has the force of state law, Mitchell v. Borakove, 225 A.D.2d 435, (1st Dep't), appeal dismissed, 88 N.Y.2d 919 (1996), and 438-440 ( Tom, J. concurring) expressly conferred standing on the Public Advocate to petition for a summary inquiry. Respondent has not demonstrated that its enactment was inconsistent with the New York State Constitution. I find that within its limited framework, Section 1109 is not unconstitutional as applied, on any of the grounds asserted by the Mayor.
Applicability of Section 1109 to Alleged Violations of the Family Family Court Act and the Criminal Procedure Law
Next, the Mayor contends that section 1109 was intended to be limited to acts of corruption and misapplication of City funds, and that therefore the inquiry sought by the Public Advocate is beyond the scope of section 1109. The Mayor states that, "[i]n reviewing the scope of Section 1109, it is appropriate to construe it `as the courts would have construed it if it had come in question soon after its passage.'" Respondent's Memorandum of Law, at 16. The principle of statutory construction quoted by the Mayor relates to the question of whether a statute speaks "from the time when it was enacted, . . . when the courts are called on to interpret it, [or] the time it took effect." McKinney's Cons Laws of NY, Book 1, Statutes § 93. This principle has little or no bearing on the question before this court of construing a law which was enacted more than 100 years ago, and the relevant portion of which was later changed by a subsequent Legislature.
Section 1109, as originally enacted in the New York City Charter of 1873, authorized a specified list of officials to seek a summary inquiry into
any alleged wrongful diversion or misapplication of any moneys or fund, or any violation of the provisions of law, or any want of mechanical qualifications of any inspectorship of public work, or any neglect of duty in acting as such inspector, or any delinquency charged in said affidavit touching the office or the discharge or neglect of duty, of which it is alleged in the application for said order that such alderman, head of department, or other afore-mentioned officer or persons, had knowledge or information.
(Former N Y City Charter § 109, L 1873, ch 335).
In 1936, that provision was broadened to include the president of the City Council among the persons who could request an inquiry. In addition, the scope of inquiry was made more general, stating that inquiry could be sought regarding "any alleged violation or neglect of duty in relation to the property, government or affairs of the city." (Former N Y City Charter § 889, L 1936, ch 40). More recently, in 1993, the Public Advocate replaced the president of the City Council as one of the persons who could request a summary inquiry. N Y City Charter § 1109.
Although inquiries into financial corruption may have been a primary reason for enacting the summary inquiry provision, see, Mitchel v. Cropsey, 177 AD 663 (2d Dept 1917), the language of the current Section 1109 could hardly be broader. It applies to all forms of official misconduct and easily encompasses the unauthorized release of the contents of sealed court records.
It is a fundamental tenet of statutory construction that every word in a statute is to be given effect. McKinney's Cons Laws of NY, Book 1, Statutes § 231. Limiting the summary inquiry provision to allegations of financial corruption, would, of course, do violence to that basic principle of statutory construction. In light of the 1936 amendment to section 1109, this court need not determine whether the original summary inquiry provision was intended to be limited to financial misdeeds, as the Mayor contends. Section 1109, as it now stands, is not so limited, and the inquiry sought by the Public Advocate is within the permissible scope of inquiry authorized by the New York City Charter.
The various sealing requirements which are the focus of the Public Advocate's petition are an extremely important part of our juvenile and criminal justice system. Family Court Act §§ 166 and 375.1. Criminal Procedure Law Sections 160.50, 160.55, 720.35 are the core provisions of an elaborate statutory scheme. They are designed to insure that the person charged but not convicted of a crime (or in the case of a juvenile, not convicted of a designated felony) is protected from the stigma that accompanies a criminal prosecution. Our courts have repeatedly noted that even an unsuccessful criminal prosecution can adversely affect both a person's reputation and his employment prospects. See, Harper v. Angiolillo, 89 N.Y.2d 761 (1997). To protect against these adverse consequences, the Legislature has established broad sealing requirements. Id. Because of the important remedial purposes of the sealing statutes, they include strict safeguards, though in appropriate cases the court may unseal records if they pertain to the business of the court and unsealing is essential to the proper administration of justice. See, Hynes v. Karassik, 47 N.Y.2d 659, reargument denied, 48 N.Y.2d 656 (1979)
Regardless of whether the confidentiality of these records continues after the death of their subject, the unsealing of the records is not self-executing. The ability and willingness of the Mayor, in concert with executive agencies serving under his aegis, to bypass the sealing safeguards, in the Dorismond case, as well as in other cases cited by the Public Advocate, to ignore the procedures for judicial unsealing, and disseminate information contained in sealed records at will, presents a question as to the functioning of municipal government of sufficient importance to warrant a summary inquiry.
Subject Matter of the Hearing
Finally, the Mayor contends that the Public Advocate's application should be denied because there are no questions of fact in dispute here, and therefore the application is not the proper subject matter for a section 1109 inquiry. According to the Mayor, because testimony has been provided at a legislative hearing by the Police Commissioner and the Corporation Counsel on the matter, this court should dismiss the application in the exercise of sound judicial discretion.
Although there do not appear to be questions of fact regarding whether information concerning Mr. Dorismond, which was contained in sealed Family Court and/or Criminal Court records, was made public by the Mayor, that is not the end of the matter. The Public Advocate seeks an inquiry concerning how that information was kept by the relevant agencies and how it was obtained by the Mayor. In unsworn testimony before the Joint Public Hearing of the New York State Assembly Standing Committees on Codes, Judiciary, and Children and Families, Police Commissioner Safir stated that he was given a memo from his staff containing the information, which he then orally conveyed to the Mayor. However, neither Commissioner Safir nor Mr. Hess gave complete testimony concerning how the various files are maintained, who actually obtained the information which was in the staff memo given to Commissioner Safir, or from which specific files the information came. No answer was provided to the question whether information sealed by court order is nevertheless not expunged from probation or police records, for example. In short, most of the questions raised by the Public Advocate remain unanswered. Therefore, I conclude that a summary inquiry would not be an inappropriate waste of public resources, as the Mayor contends.
The inquiry may not, however, be utilized to merely question the Mayor about what he has already conceded: that he in fact, made public information which was contained in sealed records. Nor will this inquiry, as presented, result in a determination by the court of legal issues raised by the release of the information for that would be beyond the scope of the City Charter authorization.
Accordingly, it is here that petitioner's application is granted; and it is further that respondent's challenge to the application is denied; and it is further that within 21 days of service of a copy of this order with notice of entry, Petitioner shall serve on counsel for the Mayor and submit to the Court a list of witnesses whom he seeks to examine; within 15 days thereafter the Mayor may serve and submit objections to the proposed witnesses, if any, and identify witnesses he proposes to present.