Petition — BARRY v. NEW YORK (Nos. 83-485, 83-484)

Supreme Court brief1983

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Office-Supreme Court, US.

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83 “4 85 SEP 20 1993

ALEXANDER L STEVAS,

eel

IN THE

Supreme Court of the Hnited States

October Term, 1982

JOHN J. BARRY, MARGUERITE V. BARRY and JAMES

GEBHARDT, on their own behalf and on behalf of all others

similarly situated,

Petitioners,

-VS.-

CITY OF NEW YORK; NEW YORK CITY BOARD OF

ETHICS; EDWARD I. KOCH, as Mayor of the City of New York;

and DAVID N. DINKINS, as City Clerk,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

JOHN P. SCHOFIELD

Attorney for Petitioners

299 Broadway

New York, N.Y. 10007

(212) 406-2600

Of Counsel:

SCHOFIELD & DIENST

KARL S. KATCHER

EILEEN M. SCHOFIELD

Dick Bailey Diotes, 203 Richmond Avenue @ Staten Island, New York 10302

Tel: (212) 447-5358 — (516) 222-2470 — (914) 682-0848

QUESTIONS PRESENTED

1. Does New York City Local Law 1 of 1975, as

amended by New York City Local Law 48 of 1979,

(which requires public disclosure of comprehensive

personal finances by New York City employees earn-

ing over $30,000), provide adequate safeguards to

guarantee the individual’s right to privacy as provid-

ed under the United States Constitution?

2. Was the Circuit Court correct in disregarding

the findings of fact by Abraham D. Sofaer, J., in the

District Court that the privacy mechanism found in

Local Law 48 was without adequate safeguards?

iii

TABLE OF CONTENTS

EE ee

ic. ssn ie aeee

Te tees bowen

Constitutional and Statutory Provisions

EE Or ae

Statement of the Case.....................

Reasons for Granting the Writ..............

1. The Decision Below Upholding LL 48 Con-

flicts with the Constitutional Guarantees

of the Right of Privacy..................

2. The Decision Below Failed to Follow the

Findings of Fact Made by the District

APPENDICES

B—Text of Statutory Provision of Local Law 1 .....27a

C—Text of Local Law 48 .........cc:sscsscssessescessescersscees 3la

D—Decision of the District Court ...........cccccsseessees 35a

E—Order of the District Court ...........cscssssseeseeeee 118a

CASES CITED

Carey v. Population Services International,

BE TE BI Ge ttietitesnciteinveeaptccinceae 5

Eisenstadt v. Baird, 405 US 438, 453 (1978) .........s008 5

Griswald v. Connecticut, 281 U.S. 479 (1965) ............ 5

Hunter v. The City of New York, 58 A.D. 2d

136, 396 N.Y.S. 2d 186 (1st Dept. 1977), aff’d

06 BE FOB (IDFA) .ccccesccesstsessensiescesscunisnntinlanclseiiilimaaiaiel 5

Moore v. East Cleveland, 431 U.S. 479 (1977) .......s00+0 5

Roe v. Wade, 410 U.S. 113, 155 (1973) ........ccccsesseeeeeees 5

Shuman v. City of Philadelphia, 470 F.Supp. 449 ......9

Watkins v. United States, 354 U.S. 178, 200

(EBT) .<cnncvicsccvsnsensnceinnstinnccestesninctenstensneiiniadinntenmamentineetih 7

Whelan v. Roe, 429 U.S. 589 (1977) ......scccsseersersesereees 9

Zablochi v. Redhail, 434 U.S. 374 (1978) .......scecseeseeees 5

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

No.

JOHN J. BARRY, MARGUERITE V. BARRY and

JAMES GEBHARDT, on their own behalf and on

behalf of all others similarly situated,

Petitioners,

Vv.

CITY OF NEW YORK; NEW YORK CITY BOARD

OF ETHICS; EDWARD I. KOCH, as Mayor of the

City of New York; and DAVID N. DINKINS,

as City Clerk,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The petitioners, JOHN J. BARRY,

MARGUERITE V. BARRY and JAMES

GEBHARDT, on their own behalf and on behalf of all

others similarly situated, respectfully pray that a

Writ of Certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Second Circuit entered in this proceeding on June 22,

1983.

OPINIONS BELOW

The opinion of the Court of Appeals, not yet

reported, appears as Appendix A.

The opinion of the District Court for the Southern

District of New York appears as Appendix D and is

reported at 551 F. Supp. 917. That opinion also

covered the companion case which was heard jointly

on appeal, James Slevin, et al plaintiff-appellees-

cross-appellants v. City of New York, et al,

defendants-appellants-cross appellees, No. 83-7010

and No. 83-7080. A petition for a Writ of Certiorari in

the companion case, on information and belief has

been filed. These writs involved identical issues.

JURISDICTION

The District Court for the Southern District of

New York had jurisdiction over this action pursuant

to 28 USC §1331 and 1343 (3).

The final judgment of the Court of Appeals for the

Second Circuit was entered on June 22, 1983. This

petition for Certiorari was filed within 90 days of that

date. This Court’s jurisdiction is invoked under 28

USC 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

New York City Local Law 1 of 1975 and New York

City Local Law 48 of 1979 are statutory provisions

relevant to this petition.

The constitutional and statutory provisions

which are relevant to a determination of the issues

raised by this petition are the First, Fourth, Fifth and

Ninth Amendments to the United States Constitution

and New York City Local Laws 48 of 1979 and 1 of

1975.

The text of the statutory provision of Local Law 1

is set forth in Appendix B, and the text of Local Law

48 in Appendix C.

STATEMENT OF THE CASE

This action was brought on behalf of petitioners

to challenge the financial disclosure provisions of New

York City Local Law 48 of 1979, New York City Ad-

ministrative Code §1105-5.0 (hereinafter ‘‘LL48”’) and

its unconstitutionality as it applies to the petitioners.

The decision of District Court was rendered on

November 24, 1982 and the judgment was entered on

January 10, 1983 (Appendix D).

In its decision, the District Court sustained the

constitutionality of LL48 insofar as the statute re-

quired that all covered employees submit, to the City,

a report of their financial interests, but held un-

constitutional that provision authorizing public

disclosure of these reports.

The District found that public access to the

reports of officers and employees of the City, who do

not occupy policy making positions, would be

violative of their right to privacy under the Four-

teenth Amendment. The Court further found that the

law established an inadequate procedure to protect

covered employees from an unwarranted invasion of

their privacy.

“Public disclosure of the information called for by LL

48 will seriously affect privacy interests, without ad-

vancing any substantial societal need. Plaintiffs are

entitled to no less protection of their privacy than or-

dinary citizens; limits on their privacy rights cannot

be justified on this record by special needs related to

their actual employment.”’ 551 F. Supp. 917, 948.

The Court of Appeals for the Second Circuit in its

June 22, 1983 decision and judgment affirmed the

District Court judgment which sustained the con-

stitutionality of the LL 48 filing requirement but

reversed the District Court decision disclosure provi-

sions of LL 48 to be unconstitutional.

The Court of Appeals, in its decision, relied upon

certain affidavits submitted by defendant-appellant,

City of New York, which were part of an application

seeking the granting of a new trial. This application

was denied after the decision of the District Court had

been rendered. The District Court’s opinion clearly set

forth grounds showing that the affidavits in support

of the motion for a new trial failed to change the

status of the proof offered upon the trial, and failed to

enhance the position urged upon the trial by the mo-

vant (Appendix D).

Under LL 48 the petitioners would be required to

disclose in the financial questionaire confidential

material which would be available for public perusal.

In addition, the spouse of the covered employee

would also be required to disclose his or her financial

interests in the questionaire. Thus, treating spouses

as chattels of each other. This statutory approach is in

direct conflict with Eisenstadt v. Baird, 405 US 438,

453 (1978) where the Court held that a marital couple

is not one entity but clearly two individuals. This

legislation infringes upon the fundamental rights of

personal and marital privacy without any compelling

state intorest.

LL 48 violates the plaintiffs’ constitutionally-

protected interests. Roe v. Wade, 410 U.S. 113, 155

(1973); Griswald v. Connecticut, 281 U.S. 479 (1965);

Moore v. East Cleveland, 431 U.S. 479 (1977);

Zablocki v. Redhail, 434 U.S. 374 (1978); Carey v.

Population Services International, 431 U.S. 678

(1977).

New York City Local Law 48 of 1979 is merely a

revision of New York City Local Law 1 of 1975

(Hereinafter called LL 1) both of which involve

disclosure of personal information by the covered

employee (and spouse) who earn over the threshold

amount, that threshold amount being $25,000 in LL 1

and $30,000 in LL 48.

In Hunter v. The City of New York, 58 A.D. 2d

136, 396 N.Y.S. 2d 186 (1st Dept. 1977), aff’d 44 2d

708 (1978) LL 1 was declared invalid insofar as there

was no protective measure incorporated into the

statute which would prevent automatic public

disclosure of any and all information which was

disclosed.

One of the first LL 1 financial questionaires was

filed in 1975 by Deputy Police Commissioner, James

Taylor. Soon afterwards, Taylor found his entire net

worth published in the New York Daily News.

LL 1 was revised by LL 48 which provided for a

so-called “‘protective mechanism.” This ‘protective

mechanism” merely amounted to a further privacy ir.-

terference by requiring the privacy-seeker to expound

upon reasons why he did not want his financial

disclosure information available to the general public.

Various rules are promulgated in LL 48 as to the steps

and the arbitrary Board of Ethics’ decision making

nrocedure in these privacy cases. (See Appendix B &

C).

The District Court found that in fact no true pro-

tection existed to prevent full disclosure of said ques-

tionaire.

Police officers are extremely protective about

their personal safety. Rarely has a police officer

disclosed his personal residence or private telephone

number.

Any necessary financial information required

under LL 48 is already available within the Police

Department in a more detailed distlosure statement

filled out by each officer. However, this questionaire is

not available for public viewing.

John Guido, Chief of Inspectional Services of the

New York City Police Department, conceded that the

interests of prevention of corruption, or conflicts of in-

terest will be fully served by disclosure of such infor-

mation to his Department.

Legislation may be a vehicle for securing informa-

tion on matters of public concern but this power must

be limited due to privacy interests. In Watkins v.

United States, 354 U.S. 178, 200 (1957), the Supreme

Court stated:

‘“(T)here is no... power to expose for sake of ex-

posure. The public is, of course, entitled to be inform-

ed concerning the workings of its government. That

cannot be inflated into a general power to expose

where the predominant result can only be an invasion

of the private rights of individuals.”’

It should be noted that petitioners do not partake

in any policy or decision making within their title.

They are not proper subjects for public scrutiny. Peti-

tioners are civil servants who achieved their rank in

the Police Department through success on com-

petitive exams, after many years of service.

The trial record established that the City Council

had no need to draw an arbitrary line of $30,000. LL

48 was written to cover all the important elected and

policy-making officers in City Government. The law

expressly applies to the Mayor, City Council Presi-

dent, City Councilmen, Borough Presidents and Com-

ptroller, as well as every individual earning in excess

of $30,000. LL 48 was not intended to apply to the

non-managerial and non-policy-making employees ear-

ning more than $30,000.

REASONS FOR GRANTING THE WRIT

1, THE DECISION BELOW UPHOLDING LL

48 CONFLICTS WITH THE CONSTITU-

TIONAL GUARANTEES OF THE RIGHT OF

PRIVACY.

The decision of the District Court upheld the con-

stitutionality of LL 48 insofar as it required peti-

tioners to file annual financial reports with the City

Clerk.

The District Court sustained the constitutional

challenge to that portion of LL 48 which permitted

public disclosure invalid. The decision stated that the

public need not have private information about

government employees who merely implement policy.

The Court stated:

“The Federal Courts must guard against the possibili-

ty that elected government officials faced with

pressures for unlimited fiscal disclosure, particularly

from the Press upon which they depend for coverage

and from which they regularly seek support, may too

readily subject career government servants with no

significant policy-making functions to the same

degree of disclosure appropriate for themselves.’’ 551

F. Supp. 917, 948

LL 48, as currently drafted, fails to provide any

true protection to any individual required to file. It

does not provide any individual with the right to bring

a civil or criminal action against any person's

unauthorized use of said information. No true protec-

tion exists for any individual properly complying with

the statute.

In Whelan v. Roe, 429 U.S. 589 (1977), the

Supreme Court held that the right to privacy protects

an individual's interest in confidentiality and

autonomy.

In a 1979 case, Shuman v. City of Philadelphia,

470 F. Supp. 449, the Court invalidated a Police

Department policy permitting inquiry into any aspect

of the personal file of police officers.

The District Court found that public access to the

information filed pursuant to LL 48 would have a

substantial impact on both confidentiality and

autonomy privacy interests. In stating that

‘(p)ublic disclosure will directly materially affect the

confidentiality interests of filers and their spouses’’

551 F. Supp. 917, 935..

The Court noted that persons likely to use the forms

include those seeking to exploit the filer or his spouse

for private or commercial gain.

The District Court correctly found that plaintiffs

have constitutionally protected privacy rights which

were violated by the public disclosure requirements of

LL 48.

2. THE DECISION BELOW FAILED TO

FOLLOW THE FINDINGS OF FACT MADE

BY THE DISTRICT COURT AFTER TRIAL.

The Circuit Court of Appeals substituted its own

fin._ngs in reaching the decision whereby it reversed

that portion of the District Court’s opinion involving

the public inspection requirement contained in LL 48.

The Circuit Court arbitrarily gave greater

credibility to defendant’s affidavits in support of a

new trial which the District Court found had failed

‘to contradict substantially the Court’s conclu-

sion that the privacy mechanism conditions the oppor-

tunity to avoid one invasion of privacy on accepting a

second even more intrusive invasion.”’ (Appendix E)

The District Court further stated:

“(djefendants appear to rely on data concerning

privacy claims that have thus far been passed upon by

the Board of Ethics... Three years experience with

LL 48's privacy mechanism, however, hardly

established reliable expectations about the volume of

future privacy claims and their dispositions, especial-

ly since the experience does not include the privacy

claim of members of the plaintiffs class (emphasis

ours). In any event, the data fails to establish the ade-

quacy of LL 48’s privacy mechanism.” (Appendix E)

The District Court concluded:

“Finally, defendants’ motion ignores the Court’s fun-

damental conclusion that the public disclosure of

plaintiff's financial reports would advance no substan-

tial societal interest....It is doubtful that any

privacy mechanism could justify the wmnecessary

public disclosure of plaintiffs’ financial data permitted

by LL 48.” (Appendix E)

The Circuit Court failed to follow the findings

made after the District Court Trial, and unilaterally

substituted alleged new findings with no basis on the

record before the District Court.

Findings of fact shall not be set aside unless clear-

ly erroneous, and due regard shall be given to the op-

portunity of the trial court to judge of the credibility

of the witnesses. (See: Federal Rules of Civil Pro-

cedure, Rule 52 (A) ).

CONCLUSION

For these reasons, a Writ of Certiorari should

issue to review the judgment and opinion of the Se-

cond Circuit.

Respectfully submitted,

JOHN P. SCHOFIELD

Attorney for Petitioners

299 Broadway

New York, N.Y. 10007

(212) 406-2600

Of Counsel:

SCHOFIELD & DIENST

KARL S. KATCHER

EILEEN M. SCHOFIELD

APPENDIX “A”

OPINION OF COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FoR THE SECOND CIRCUIT

aol

Nos. 1312, 1313, 1439—August Term, 1982

Argued: May 25, 1983 Decided: June 22, 1983

Docket Nos. 83-7010, 7012, 7080

—-

JOHN J. BARRY, MARGUERITE V. BARRY and JAMES

GEBHARDT, on their own behalf and on behalf of all

others similarly situated,

Plaintiffs-Appellees,

—against—

City OF NEw York; NEw YorK CiTy BOARD OF ETHICS;

EDWARD I. KOCH, as Mayor of the City of New York;

and Davip N. DINKINS, as City Clerk,

Defendants-Appellants.

JAMES SLEVIN, MARY SLEVIN, BRIAN CLINTON, JOAN CLIN.

TON, Dr. STANLEY C, FELL, and FRANK D’Amico, on

their own behalf and on behalf of all others similarly

situated,

Plaintiffs-Appellees-

Cross-Appellants,

—against—

City oF NEw York; New York City BOARD OF ETHICS;

EbWARD I. KocH, as Mayor of the City of New York;

FRANCIS T.P. PLiMPTON, as Chairman of the Board of

Ethics; POWELL PIERPOINT and BARBARA SCOTT PREIS-

KEL as members of the Board of Ethics; and DaviD N.

DINKINS as City Clerk,

Defendants-Appellants-

Cross-Appellees.

Before:

FEINBERG, Chief Judge,

LUMBARD and WINTER, Circuit Judges.

City of New York and other defendants appeal from

decision of United States District Court for the Southern

District of New York, which struck down public inspec-

tion provisions of City financial disclosure law. Slevin

plaintiffs cross-appeal that portion of decision upholding

constitutionality of law’s filing requirements.

Affirmed in part and reversed in part.

Murray A. GORDON, New York, NY (Gor-

don, Shechtman & Gordon, P.C., Rich-

ard M. Betheil, of Counsel), for

Plaintiffs-A ppellees-Cross-Appellants.

JOHN P. SCHOFIELD, New York, NY (Schofield

& Dienst, New York, NY, Richard A.

Dienst, Karl S. Katcher, Eileen M. Scho-

field, of Counsel), for Plaintiffs-Appel-

lees.

PAUL T. REPHEN, Assistant Corporation

Counsel of the City of New York (Fred-

erick A.O. Schwarz, Jr., Corporation

Counsel of the City of New York,

Leonard Koerner, Assistant Corporation

Counsel, of Counsel), for Defendants-

Appellants-Cross-A ppellees.

FEINBERG, Chief Judge:

Defendants-appellants, the City of New York and vari-

ous City officials, appeal from that portion of a decision

of the United States District Court for the Southern

District of New York, Abraham D. Sofaer, J., that struck

down the public inspection provisions of a financial

disclosure law enacted by the New York City Council.

This is a consolidated appeal: the named plaintiffs in

Slevin are employees of the New York City Fire Depart-

ment and their spouses suing for themselves and others

similarly situated; the similar suit in Barry is brought by

employees of the Police Department and their spouses.

The S/evin plaintiffs cross-appeal from that portion of

the district court decision that upheld the constitutionality

of the law insofar as it requires plaintiffs to file annual

financial reports with the City Clerk. The opinion of the

district court is reported at 551 F. Supp. 917 (1982). We

affirm the district court’s decision in part, and reverse in

part.

1. Background

In 1975, after several years of study, the New York City

Council enacted Local Law 1, New York City Admin.

Code § 1106-5.0. As originally passed, Local Law |!

required a variety of City officials, candidates for City

office, and all City employees whose salary was $25,000

or greater, to file annual reports disclosing certain finan-

cial information. The law made the reports available for

public inspection. Local Law | was upheld by the New

York State Supreme Court in Hunter v. City of New

York, 88 Misc. 2d 562 (1976). On appeal, however, the

Appellate Division, First Department, invalidated the

law. Hunter v. City of New York, 396 N.Y.S.2d 186 (Ist

Dept. 1977), aff'd, 44 N.Y.2d 708 (1978). The Hunter

court recognized that the purpose of the law, to deter

corruption and conflicts of interest among City employ-

ees, was valid. Nonetheless, the court determined that

Local Law 1 was invalid insofar as it contained no

mechanism to prevent automatic public disclosure of all

information provided. Hunter v. City of New York,

supra, 396 N.Y.S.2d at 189-90.

In response, the City Council passed Local Law 48

(hereafter LL 48), which took effect in July 1979. LL 48

amends Local Law | to permit covered employees to

assert privacy claims with respect to any of the informa-

tion the statute requires. As amended, the City’s financial

disclosure law requires annual financial reports from

most elected and appointed officia!s, candidates for City

office, and all civil service employees with an annual

salary equal to or greater than $30,000.' Covered employ-

! LL 48 requires the following individuals to file:

(i) the Mayor, City Council President, City Councilman, Bor-

ough Presidents, and Comptroller, and candidates for such posi-

tions (Sec. 1106-5.0a, subd. 1,2); and

ees and their spouses must provide extensive information

about their personal finances, including, among other

items, the identity of professional organizations from

which the employee or a spouse derives $1,000 or more in

income during the preceding year; the source of capital

gains of $1,000 or more, other than from the sale of a

residence; the source of gifts or honoraria of $500 or

more; indebtedness in excess of $500 that is outstanding

for 90 days or more; and tite nature of investments worth

$20,000 or more.’ Intentional violations of these report-

ing requirements are punishable by imprisonment not to

exceed one year or a fine not to exceed $1,000, or both.

The reports must be filed with the City Clerk, and may

be inspected by a member of the public on request.

Unlike its predecessor, however, LL 48 explicitly permits

covered individuals to request that any item or items in

their reports be withheld from public inspection on the

ground that inspection “would constitute an unwarranted

invasion of his or her privacy.” In general, a privacy claim

may be made at any time. When a request for access is

pending, however, a privacy claim cannot be asserted for

the first time, although a prior privacy claim can be

supplemented on notice of a request for access.

When an inspection request is made and a privacy

claim has been asserted, LL 48 requires the public mem-

bers of the City’s Board of Ethics’ to consider the

(ii) [e]Jach agency head, deputy agency head, assistant agency

head, member of any board or commission other than a member of

a board or commission who serves without compensation and each

city employee who is a member of the managerial pay plan or whose

salary is thirty thousand dollars a year or more. . . . (Sec. 1106-

$.0a, subd. 3).

2 The section of the statute detailing the information required is

reprinted in full as an appendix to this opinion.

3 The Board of Ethics consists of “public members of the board of

ethics appointed pursuant to section twenty-six hundred of the char-

6a )

following factors in determining whether public inspec-

tion would constitute an unwarranted invasion of

privacy:

‘a) whether the itern is of a highly personal nature;

‘b) whether the item in any way relates to the

duties of the positions held by such person;

tial conflict of interest.

The Board must file a written decision with the City

Clerk, who may then disclose only those portions of the

requested financial statement that are not exempted on

privacy grounds.

After LL 48 was passed, two class actions were filed to

contest it. In August 1979, Fire Department Battalion ©

Chiefs, Deputy Chiefs, Medical Officers, and their

spouses* sued the City of New York, its Board of Ethics

and the individual members thereof, the Mayor of the

City of New York, and the City Clerk, seeking to enjoin

the application of LL 48 to the plaintiff class. Slevin v.

City of New York, No. 79 Civ. 4524 (S.D.N.Y.). (For

convenience, we will refer to the defendants collectively

as “the City”). Shortly afterwards, New York City Police

Department Captains, Deputy Chiefs, Inspectors, Deputy

ter” of the City of New York. § 1106-5.0, subd. 4f. At the present

time, the Board consists of Francis T.P. Plimpton, Powell Pierpoint,

and Barbara Scott Preiskel.

4 According to the record before us: At the time of the hearing in this

case, the Fire Department employed only 78 Deputy Chiefs, 278

Battalion Chiefs, and 10 medical officers out of a total of approxi-

mately 9,500 uniformed employees. Deputy and Battalion Chiefs are

responsible for supervising firefighting operations and building inspec-

tions. Battalion Chiefs supervise five to eight fire companies; deputy

chiefs supervise three or four battalions. Medical officers treat

firefighte:s and determine their fitness for duty.

Inspectors, Lieutenants, Police Surgeons, and their

spouses’ filed the companion action, Barry v. City of

New York, No. 79 Civ. 4627 (S.D.N.Y.), against most of

the same defendants, seeking to enjoin the application of

LL 48 to the plaintiff class. The plaintiff officers in both

cases are “uniformed city employees, occupying competi-

tive civil service positions, who earn in excess of $30,000

annually.” Slevin v. City of New York, supra, 551 F.

Supp. at 923. The district’ court issued a preliminary

injunction enjoining the application of LL 48 to the

Slevin plaintiffs, and later expanded the injunction

against defendants to cover the Barry plaintiffs. The cases

were then consolidated and tried on the merits.

In a wide-ranging attack on the statute, plaintiffs

claimed below that as applied to them, LL 48 violated

their constitutional rights under the First, Fourth, Fifth,

Ninth and Fourteenth Amendments. In a comprehensive

opinion, Judge Sofaer sustained the constitutionality of

the statute’s filing requirements, but struck down the

public inspection provisions as an unwarranted invasion

of plaintiffs’ privacy.

On appeal, the City challenges that portion of the lower

court decision invalidating LL 48’s public inspection

provisions. The S/evin plaintiffs contend in their cross-ap-

peal that the statute should be struck down in its entirety;

s According to the record before us: At the time of the hearing in this

case, the Barry plaintiffs included 22 deputy chiefs, 39 inspectors, 81

deputy inspectors, 250 captains, 21 police surgeons and some lieuten-

ants. Captain is the highest rank that can be attained through civil

service examination. Captains normally command a precinct of 100 to

400 men. Lieutenants are a rank below captain, but the plaintiff

lieutenants are those “designated as Supervisor of Detective Squad

and/or Special Assignment,” and apparently have a salary and respon-

sibilities commensurate with those of police captains. Police surgeons

treat police officers and determine their fitness for duty. All ranks

above captain are appointed by the Police Commissioner, and involve

significant supervisory responsibilities.

the Barry plaintiffs argue only that the district court was

correct in striking down the law’s public disclosure provi-

sions. For simplicity, we deal first with the arguments

raised by the City in its appeal, and by the Slevin

plaintiffs in their cross-appeal.

Il. The City Appeal and the Slevin Cross-Appeal

We note as an initial matter that the Supreme Court has

dismissed for lack of a substantial federal question three

appeals from state court decisions upholding financial

disclosure laws. Montgomery County v. Walsh, 336 A.2d

97 (Md. 1975), appeal dismissed, 424 U.S. 901 (1976);

Fritz v. Gorton, 527 P2d 911 (Wash. 1974) (in banc),

appeal dismissed, 417 U.S. 902 (1974); Stein v. Howlett,

289 N.E.2d 409 (Ill. 1972), appeal dismissed, 412 U.S.

925 (1973). These dismissals are dispositions on the

merits, and are binding on “the precise issues presented

and necessarily decided by those actions.” Mandel v.

Bradley, 432 U.S. 173, 176 (1977) (per Buriam). But

although these dismissals “caution us against finding [LL

48] unconstitutional,” Plante v. Gonzalez, 575 F.2d 1119,

1126 (Sth Cir. 1978), cert. denied, 439 U.S. 1129 (1979),

they cannot, as the district court put it, “fairly be said to

preclude all of plaintiffs’ challenges.” 551 F. Supp. at 924.

As the district court recognized, the statute challenged in

this case, and the issues raised, differ in important re-

spects from the statutes and issues considered in the state

court decisions cited above. Id. Moreover, all three dis-

missals occurred prior to two Supreme Court decisions

that recognized a constitutional interest “in avoiding

disclosure of personal matters.” Whalen v. Roe, 429 U.S.

589, 599 (1977); Nixon v. Administrator of General

~ Services, 433 U.S. 425, 457 (1977). Accordingly, this court

must “undertake an independent examination of the

merits.” Mandel v. Bradley, supra, 432 U.S. at 177.

A. Right to Privacy

The central issue in this case is whether LL 48 violates

plaintiffs’ right to privacy. The exact nature and scope of

the right to privacy has never been fully defined. In

Whalen v. Roe, however, the Supreme Court summarized

the relevant case law as follows:

The cases sometimes characterized as protecting

“privacy” have in fact involved at least two different

kinds of interests. One is the individual interest in

avoiding disclosure of personal matters, and another

is the interest in independence in making certain

kinds of important decisions.

429 U.S. at 598-600 (footnotes omitted). These two in-

terests have been characterized by the Fifth Circuit as

interests in “confidentiality” and in “autonomy”, respec-

tively. Plante v. Gonzalez, supra, 575 F.2d at 1128.

The autonomy branch of privacy protects personal

choice in “matters relating to marriage, procreation,

contraception, family relationships, and child rearing and

education.” Paul v. Davis, 424 U.S. 693, 713 (1976). It is

unclear whether financial disclosure laws significantly

implicate any interests protected by the autonomy strand

of the right to privacy. The Fifth Circuit has concluded

that the autonomy interest does not cover “financial

privacy.” Plante v. Gonzalez, supra, 575 F.2d at 1132; see

also O’Brien v. DiGrazia, 544 F.2d 543, 545 (ist Cir.

1976), cert. denied, 431 U.S. 914 (1977). The Fitth Circuit

reasoned that financial regulations, such as tax laws, are

common in this society, and that “[t]he indirect effects

caused by financial disclosure pale by comparison” with

10a

the effects of other regulations. Plante v. Gonzalez,

supra, 575 F.2d at 1131. The court concluded that al-

though “financial disclosure may affect a family. . . any

influence does not rise to the level of a constitutional

problem.” Id. The district court in this case, however,

after a careful analysis, decided that financial disclosure

laws may sometimes “substantially, albeit indirectly, af-

fect recognized autonomy interests.” 551 F. Supp. at 928.

As will be seen below, however, it is not necessary for us

to decide the general applicability of the autonomy

branch of privacy to financial disclosure iaws.

The confidentiality branch of the right to privacy was

at issue in Whalen ¥. Roe, supra. In that case, the

Supreme Court upheld a New York statute authorizing

the state to record the names and addresses of patients

who received prescriptions for certain drugs, but stated

that individuals have a protectible “interest in avoiding

disclosure of personal matters.” 429 U.S. at 599. The

existence of that interest was reaffirmed in Nixon v.

Administrator of General Services, supra, 433 U.S. at

457, a case in which the Supreme Court upheld an Act

providing for the screening of former President Nixon’s

presidential materials to segregate official documents for

public preservation from personal documents for return

to Mr. Nixon.

The nature and extent of the interest recognized in

Whalen and Nixon, and the appropriate standard of

review for alleged infringements of that interest, are

unclear. See J.P. v. DeSanti, 653 F.2d 1080, 1087-91 (6th

Cir. 1981) (questioning whether Whalen and Roe created

any general right to non-disclosure of personal informa-

tion against which infringing government actions have to

be balanced). Most courts considering the question, how-

ever, appear to agree that privacy of personal matters is a

lla

protected interest, see, e.g., Plante v. Gonzalez, supra,

575 F.2d at 1135; United States v. Westinghouse Electric

Corp., 638 F.2d 570, 577-78 (3d Cir. 1980); Schachter v.

Whalca, 581 F.2d 35 (2d Cir. 1978), and that some form

of intermediate scrutiny or balancing approach is appro-

priate as a standard of review, see Slevin v. City of New

York, supra, 551 F. Supp. at 930 (listing cases). The

Supreme Court itself appeared to use a balancing test in

Nixon v. Administrator of General Services, 433 U.S.

425, 458 (1977). Moreover, an intermediate standard of

review seems in keeping both with the Supreme Court’s

reluctance to recognize new fundamental interests re-

quiring a high degree of scrutiny for alleged infringe-

ments, and the Court’s recognition that some form of

scrutiny beyond rational relation is necessary to safeguard

the confidentiality interest. See Plante v. Gonzalez, su-

pra, 575 F.2d at 1134. With these principles in mind, we

turn to plaintiffs’ contentions that the filing and public

inspection provisions of LL 48 violate both the confiden-

tiality and the autonomy strands of the right to privacy.

1. The Filing Requirement

The district court reached the following assessment

with respect to LL 48’s requirement that each covered

individual file a financial report with the City Clerk

The evidence established that autonomy and confi-

dentiality interests will be somewhat affected by the

- filing requirement, but that governmental interests in

deterring and detecting conflicts of interest and

venality will be furthered sufficiently to justify that

requirement.

Slevin v. City of New York, supra, 551 F. Supp. at 931.

After reviewing the record, we agree. Plaintiffs contend

12a

that LL 48 impairs their “constitutionally protected

privacy rights in the spousal relationship” because, as the

district court recognized, “[fliling will necessarily com-

promise a spouse’s desire to keep secret his or her fi-

nances from the filing employee. . . .” 551 F. Supp. at

931. The district court also recognized, however, that

filing of information regarding spouses was necessary to

make LL 48 effective. And the district court went on to

conclude that “no evidence suggested that [the filing

requirement] would significantly affect the decisions

whether to marry, whether and when to procreate, or

other family decisions heretofore held protected by the

autonomy branch.” Id. at 932.

Plaintiffs concede that this conclusion would be valid if

LL 48 furthered a substantial government purpose. We

think the statute as a whole plainly furthers a substantial,

possibly even a compelling, state interest. The purpose of

the statute is to deter corruption and conflicts of interest

among City officers and employees, and to enhance

public confidence in the integrity of its government.

Hunter v. City of New York, supra, 396 N.Y.S.2d at 187.

In addition, as the district court noted, “[flinancial dis-

closure laws also derive considerable strength from the

benefits widely felt to be derived from openness and from

an informed public.” 551 F. Supp. at 921.° The Supreme

Court has recognized a compelling state interest in the

maintenance of an honest civil service, see Lefkowitz v.

Cunningham, 431 U.S. 801, 808 (1977), and that “[aJn

informed public is essential to the nation’s success, and a

6 The district court went on to conclude that in this case the public

right to know was outweighed by plaintiffs’ privacy interests, since

plaintiffs do not occupy policymaking positions. As indicated below,

we do not think that on this record the distinction between policymak-

ing positions and nonpolicymaking positions is conclusive.

13a

fundamental objective of the first amendment.” Slevin v.

City of New York, supra, 551 F. Supp. at 921 (citing Red

Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969);

New York Times Co. v. Sullivan, 376 U.S. 254, 269

(1964)). Whatever one may think of the intrusiveness of

financial disclosure laws, they are widespread, see Slevin

v. City of New York, supra, 551 F. Supp. at 919 n.l, and

reflect the not unreasonable judgment of many legisla-

tures that disclosure will helf reveal and deter corruption

and conflicts of interest,

Plaintiffs argue, however, that the filing requirement is

unnecessary because all the information obtained through

LI. 48 is already available to the City under existing

procedures, where necessary to further an authorized

investigation. We agree with the district court, however,

that “(t]he City is not required to rely. . . on departmen-

tal mechanisms to achieve its aims; it is entitled to opt for

a centralized system of monitoring its employees’ fi-

nances, even if the new procedure is less comprehensive

than some departmental procedures.” 551 F. Supp. at

933.

Plaintiffs in Slevin, which primarily involves officers of

the Fire Department, also claim that LL 48 is unnecessary

because there is no history of or opportunity for corrup-

tion among Fire Department Chief or Medical officers.

The City contends that Fire Department employees face a

variety of opportunities for corruption or conflicts of

interest; e.g., a Fire Department Chief or his spouse

might hold real estate investments in an area of his

command subject to inspections or enforcement proceed-

ings, or a medical officer might receive payments from a

firefighter who desires to remain on paid sick leave.

Plaintiffs succeeded in discrediting much of the City’s

evidence on this issue, and the district court determined

l4a

that “opportunities for corruption” among the Fire

Department plaintiffs were “limited”. 551 F. Supp. at

932-33. The court went on to find, however, that

“(c]orruption and more subtle conflicts of interest are

possible in each group of plaintiff employees.” Id. at 933.

We agree with this assessment. In our view, the City

Council could reasonably . onclude that LL 48 would help

deter corruption and conflicts of interest in the Fire

Department, despite its “virtually corruption-free his-

tory.” 551 F. Supp. at 932 n.11.

Plaintiffs also challenge the establishment of a $30,000

threshhold disclosure level as both underinclusive and

overinclusive. We consider that argument at some length

below, in the context of our discussion of the public

inspection provision of LL 48.

Plaintiffs’ final privacy argument with respect to the

filing requirements is that LL 48 lacks adequate security

precautions to prevent inadvertent disclosure of financial

reports. Cf. Whalen v. Roe, supra, 429 U.S. at 605-06

(discussing importance of security measures); United

States v. Westinghouse Electric Corp., supra, 638 F.2d at

580. Plaintiffs do not point to any instances in which

material covered by a privacy claim has been inadver-

tently released since the statute was enacted in 1979. We

would expect that the City will treat the LL 48 reports

“with the same degree of confidentiality now accorded

private information in the City’s personnel records,”

Slevin v. City of New York, 551 F. Supp. at 949 n.21, and

that it will take adequate precautions to prevent inadver-

tent disclosure of material protected by a privacy claim.

On this record, we cannot say that the statute must be

invalidated for lack of adequate security measures.

15a

2. The Public Inspection Requirement

More difficult constitutional questions are raised by the

provision of LL 48 that permits public inspection of

plaintiffs’ annual financial reports. The adverse effect of

public disclosure on privacy interests is considerably

greater than the effect of disclosure to the City; at the

same time, the City’s interest in public inspection is

weaker in significant respects than its interest in obtaining

financial information for internal review. Nonetheless, we

think the statute, as strengthened by the privacy claim

procedures, withstands constitutional scrutiny even with

respect to the broad public inspection requirement.

As the district court noted, “[t]he degree of intrusion

stemming from public exposure of the details of a per-

son’s life is exponentially greater than disclosure to gov-

ernment officials.” 551 F. Supp. at 934 (citations

omitted). Plaintiffs contend that public disclosure will

impair their autonomy interests by forcing them to rede-

fine their marital and family relationships. The district

court found that “public filings will reveal in some

instances facts that could damage a variety of associa-

tions and relationships.” 551 F. Supp. at 935. In addition,

the district court found that “[p]Jublic disclosure will

directly and materially affect the confidentiality interests

of filers and their spouses,” id., citing a variety of

examples, such as the possibility of an embarrassing

revelation “that one lives above or below one’s means.”

Id.

We recognize that public disclosure of financial infor-

mation may be personally embarrassing and highly intru-

sive. Unlike the district court, however, we think that the

Statute’s privacy mechanism adequately protects plain-

tiffs’ constitutional privacy interests.

16a

An employee filing a financial report may make a claim

of privacy with respect to any item of information sought

by the City by explaining in writing the reasons for the

request. Privacy claims are not adjudicated by the Board

of Ethics unless a request for public inspection is made;

while this may leave the filer in a state of uncertainty as to

the eventual outcome of his privacy claim should an

inspection request ever be made, we do not think that by

itself is of constitutional significance. If a privacy claim

has been made and someone requests access to the claim-

ant’s report, the matter is referred to the Board of Ethics

for evaluation. As indicated above, the Board must con-

sider three factors in evaluating a privacy claim: whether

the item is highly personal; whether it relates to the

claimant’s duties; and whether the item involves a possi-

ble conflict of interest.

We do not think that the right to privacy protects

public employees from the release of financial informa-

tion that is related to their employment or indicative of a

possible conflict of interest. Nor do we think the release

of information that is not “highly personal” rises to the

level of a constitutional violation.

Moreover, the record does not support plaintiffs’ con-

tentions that the privacy mechanism is inadequate. Ac-

cording to an affidavit of one of the members of the

Board of Ethics, twenty-six privacy claims have come

before the Board. Sixteen were granted, six were with-

drawn, and one was “otherwise disposed of.” Only three

privacy claims were denied, apparently because insuffi-

cient information was provided in support of the claims.

When an inspection request is made, the filer is notified

of the identity of the person seeking access. According to

the City, the filer is then afforded the opportunity to

present additional material in support of his privacy

17a

claim. If the privacy request is denied, the City informs us

that the filer has ten days in which to seek reconsideration

by the Board or judicial review. In light of the actual

experience with the privacy procedure discussed above,

we think this process affords plaintiffs an adequate op-

portunity to contest the disclosure of any information

whose release might violate their right to privacy.

The S/evin plaintiffs argue that the affidavits relied on

by the City to support its éontentions with respect to the

actual operation of the privacy claim mechanism are not

properly before this court. According to plaintiffs, the

affidavits, which were submitted to the district court after

trial on a motion for a new trial, are inadmissible because

they consist primarily of matter alleged on information

and belief, and because plaintiffs did not have an oppor-

tunity to conduct discovery, cross-examine the affiants, or

introduce rebuttal evidence. Ordinarily, we might be in-

clined to remand the case ‘o the district court to clarify

this issue. But we see no need for that procedure here.

The contested affidavits were before the district court

on defendants’ motion for a new trial, which was denied

even in the absence of any rebuttal evidence from the

plaintiffs. Moreover, plaintiffs do not contest the ac-

curacy of the information regarding the actual disposition

of privacy claims; indeed, they rely on the same facts to

support their claim that the privacy procedures are inade-

quate.

Plaintiffs characterize defendants’ statements that

filers may supplement their privacy claims when a request

for access is made, and that filers are given adequate time

to seek judicial review when a privacy claim has been

denied as “a hitherto unknown construction of the stat-

ute,” but do not actually contest the accuracy of these

assertions. We note that Judge Sofaer relied on the

18a

affidavits in finding that in practice filers are afforded a

“meaningful opportunity for judicial review.” The statute

itself explicitly authorizes the Board of Ethics to “estab-

lish procedures for the consideration” of privacy re-

quests. Accordingly, it is clearly within the Board’s power

to afford filers an opportunity to supplement existing

privacy claims when a request for access is made, and to

provide an adequate opportunity to seek judicial review

when a claim is denied. We therefore rely on the City’s

assurances that the privacy mechanism so operates in

practice.

The City further informs us that a filing employee may

specify that he does not want information released to

particular persons or groups, and that the Board of Ethics

may deny an inspection request if the Board “has reason

to believe that the person or organization making the

request is not acting in good faith or is attempting to

obtain the information for some inappropriate or im-

proper purpose.” Again, plaintiffs claim that this is a

novel and possibly erroneous construction of the statute,

and that there is no indication in the record that the

Board of Ethics operates in this fashion. Nothing in the

Statute requires the Board of Ethics to consider the

identity of the person seeking access, but nothing appears

to bar the Board from doing so either. Whether or not the

Board follows the sensible practice of considering the

identity of the person requesting access, however, we

think the privacy procedure is adequate to protect plain-

tiffs’ rights. We note by way of comparison that courts

have upheld financial disclosure laws that hit much closer

to home and do not hive any similarly broad privacy

mechanism. See, e.g., Duplantier v. United States, 606

F.2d 654 (Sth Cir. 1979), cert. denied, 449 U.S. 1076

(1981) (upholding Ethics in Government Act). However,

19a

in view of the apparent confusion as to the exact opera-

tion of the privacy mechanism, the City might be well

advised to explain it more fully to the affected City

personnel.

In any event, we think the City’s interest in public

disclosure outweighs the possible infringement of plain-

tiffs’ privacy interests. Plaintiffs argue that the City’s

efforts to deter corruption and conflicts of interest would

be as well served by disclosure to the City only as by

public disclosure. We disagree.

In the City’s view, public disclosure will significantly

bolster its efforts to deter official malfeasance. The City

cites the example of the 1972 Knapp Commission investi-

gation, which uncovered extensive corruption in the Po-

lice Department, and determined that despite charges of

corruption, no serious official investigation was made

until the press publicized the allegations. According to the

City, public disclosure of financial reports will spur City

agencies and officials to be aggressive in their efforts to

police corruption, if only for fear that evidence of mis-

conduct might be found in a financial report and publi-

cized by the press, a public interest group, or a vigilant

citizen. In addition, the City contends that public disclo-

sure will enhance public confidence in the integrity of

City government ii only because the reports will demon-

Strate that most City officials and employees are honest

and not subject to conflicts of interest in the performance

of their duties.

The district court was not persuaded by the City’s

arguments. But as the Supreme Court noted in Whalen v.

Roe, supra, 429 U.S. at 597 (footnotes omitted);

State legislation which has some effect on individual

liberty or privacy may not be held unconstitutional

simply because a court finds it unnecessary, in whole

20a

or in part. For we have frequently recognized that

individual States have broad latitude in experiment-

ing with possible solutions to problems of vital local

concern.

In this case, we cannot say that it was unreasonable for

the City Council to conclude that public disclosure would

materially advance the City’s attempt to prevent corrup-

tion and conflicts of interest.

As noted above, plaintiffs also challenge the $30,000

threshold disclosure level. Plaintiffs contend that unlike

the plaintiffs in Plante v. Gonzalez, supra, 575 F.2d 1119,

or in Duplantier v. United States, supra, 606 F.2d 654,

they are not all public figures, nor do they all occupy

policymaking positions “with substantial discretion over

the disposition of valuable goods.” They conclude that

the pro-disclosure balance reached in Plante and Duplan-

tier is therefore inappropriate here. But the fact that

many of the plaintiffs are not public figures or policy-

making officials does not immunize them from all possi-

bilities of corruption or conflict of interest. Indeed, as

noted earlier, the district court in holding the filing

requirement constitutional found that corruption and

conflicts of interest are possible in each group of plain-

tiffs. Given the magnitude of the City’s interests, we

think the constitutional balance still tips in favor of

permitting public disclosure.

The district court decided that the potential for corrup-

tion does not justify “across-the-board, public disclosure

of finances.” 551 F. Supp. at 940. In addition, the district

judge found that the $30,000 level was both overinclusive

and underinclusive. Id. at 940-44.

We recognize that full disclosure is burdensome, and

that some City employees earning less than $30,000 might

have opportunities for corruption, while others earning

2la

more than $30,000 might not. Moreover, we agree with

the district court that the statute would be better if it

specified the “particular job categories” that should be

subject to disclosure, and defendants themselves concede

that “it may now be time” to consider raising the

threshhold for reporting “to take into account the effect

of inflation since 1979.” Nonetheless, we cannot say that

the statute must therefore fall. Ordinarily, legislative clas-

sifications of this sort must stand unless “very wide of

any reasonable mark.” Buckley v. Valeo, 424 U.S. 1, 83

n.111 (1976) (per curiam). And the City argues that there

are toO many positions involved to permit classification

by particular job categories, a determination that it is

difficult for a court to characterize as erroneous. In any

event, however, the burden imposed by an imprecise

classification, and by the broad nature of the required

disclosure, is mitigated by the statute’s privacy mecha-

nism, which permits covered employees to challenge the

proposed release of irrelevant “highly personal” informa-

tion. Accordingly, we cannot say that the law is unconsti-

tutionally overbroad or that it violates the constitutional

right to privacy.

B. Additional Constitutional Claims

Plaintiffs also contend that LL 48 violates their rights

under the Fourth and First Amendments. We agree with

the district judge that there is little merit to these argu-

ments.

1. Fourth Amendment

Plaintiffs contend that they have a reasonable expecta-

tion of privacy with respect to the disclosure of financial

information, and that therefore the Fourth Amendment

shields them from compelled disclosure. It is doubtful,

22a

however, whether the Fourth Amendment applies in this

context. See Whalen v. Roe, supra, 429 U.S. at 604 n.32.

Moreover, as the district court noted, plaintiffs plainly

have no reasonable expectation that the information

sought by LL 48 can be withheld from their employers.

551 F. Supp. at 925. In addition, even if plaintiffs have a

reasonable expectation of privacy with respect to public

disclosure, the Fourth Amendment prohibits only unrea-

sonable inquiries. Cf., e.g., California Bankers Associa-

tion v. Shultz, 416 U.S. 21, 59-70 (1974); Camara v.

Municipal Court, 387 U.S. 523, 536-39 (1967). As stated

above, we cannot say that the demands of LL 48, as

limited by its privacy mechanism, are unreasonable.

2. First Amemdment

Plaintiffs also contend that LL 48 impairs their First

Amendment rights of freedom of association and speech,

because it will force disclosure of organizational activities

and affiliations. The district court found, however, that

plaintiffs failed to demonstrate that LL 48 would “signifi-

cantly inhibit the exercise of their first amendment

rights.” 551 F. Supp. at 92°. We agree with the district

court that on this record the threat that LL 48 will

Significantly interfere with plaintiffs’ First Amendment

rights is “too remote”. See id.; Plante v. Gonzalez, supra,

$75 F.2d at 1132-33.

Il. The Barry Appeal

The Barry plaintiffs challenge only the public inspec-

tion provisions of LL 48. For the most part, their argu-

ments parallel those of the S/evin plaintiffs, and the Barry

plaintiffs incorporate by reference the arguments pre-

sented by the S/evin plaintiffs. The principal difference

23a

between the two groups of plaintiffs, for purposes of this

appeal, is the different opportunities for corruption and

conflicts of interest available to each group. Unlike the

Fire Department, the Police Department “has a history of

pervasive corruption.” Slevin v. City of New York, supra,

551 F. Supp. at 933 n.12. Moreover, the district court

found that “corruption in the Department .. . has

markedly diminished, but it persists.” Id. Thus, the City’s

justification for seeking ‘financial disclosure from the

Barry plaintiffs and for permitting public inspection of

their reports is stronger than in the case of the Slevin

plaintiffs. Accordingly, our decision of the S/evin appeal

controls the disposition of the Barry appeal.

Conclusion

After reviewing the record and considering all of plain-

tiffs’ arguments, we conclude for the reasons stated

above that LL 48 is constitutional in its entirety as applied

to the plaintiffs. Accordingly, we affirm that portion of

the district court’s opinion relating to the filing require-

ments, and reverse that portion of the opinion dealing

with the public inspection requirements.

24a

APPENDIX

b. The report shall contain the following information:

1. List the name, address and type of practice of

any professional organization in which the person

reporting or his spouse, is an officer, director, part-

ner, proprietor or employee, or serves in any advisory

capacity, from which income of one thousand dollars

Or more was derived during the preceding calendar

year.

2. List the source of each of the following items

received or accrued during the preceding calendar

year by the person reporting or his spouse.

(a) any income for services rendered, other

than any source of income otherwise disclosed

pursuant to paragraph one, of one thousand

dollars or more;

(b) any capital gain from a single source of

one thousand dollars or more other than from

the sale of a residence occupied by the person

reporting;

thousand dollars or more in each instance;

(d) honoraria from a single source in the

aggregate amount of five hundred dollars or

more;

(e) any gift in the aggregate amount or value

of five hundred dollars or more from any single

source received during the preceding year, except

as otherwise provided under the election law

covering campaign contributions.

3. List each creditor to whom the person reporting

or his spouse was indebted for a period of ninety

25a

consecutive days or more during the preceding calen-

dar ycer in an amount of five thousand dollars or

more.

4. List the identity of each investment and each

parcel of real property in which a value of twenty

thousand dollars or more was held by the person

reporting or his spouse at any time during the preced-

ing calendar year, based on the cost thereof or when

acquired by means other than purchase, an estimate

of the value at the time of receipt.

5. List the identity of each trust or other fiduciary

relation in which the person reporting or his spouse

held a beneficial interest having a value of twenty

thousand dollars or more during the preceding calen-

dar year.

6. (a) Indicate if the total amount of income

received from each and every source listed (1) pur-

suant to the provisions of paragraph one and sub-

paragraphs a, b and c of paragraph two of this

section is at least one thousand dollars but less than

five thousand dollars, at least five thousand dollars

but less than twenty-five thousand dollars; at least

twnety-five thousand dollars but less than one hun-

dred thousand dollars or one hundred thousand

dollars or more; and (2) pursuant to the provisions o!

subparagraphs d and e of paragraph two of this

section is less than one thousand dollars; at least onc

thousand dollars but less than five thousand dollars;

at least five thousand dollars but less than twenty-

five thousand dollars; at least twenty-five thousand

dollars but less than one hundred thousand dollars o:

one hundred thousand dollars or more.

26a

(b) Indicate if the total amount of indebtedness

owed each creditor listed pursuant to paragraph

three of this section was at least five thousand dollars

but less than twenty-five thousand dollars; at least

twenty-five thousand dollars but less than one hun-

dred thousand dollars; at least one hundred thousand

dollars but less than five hundred thousand dollars

or over five hundred thousand dollars.

and real property interest identified pursuant to

paragraph four of this section and each beneficial

interest identified pursuant to paragraph five of this

section was during the reporting period, at least

twenty thousand dollars but less than one hundred

thousand dollars; at least one hundred thousand

dollars but less than five hundred thousand dollars

or five hundred thousand dollars or more.

27a

APPENDIX “B”

STATUTORY PROVISIONS OF LOCAL LAW 1

1. New York City Local Law 1 of 1975, New York

City Administrative Code §1106-5.0:

“Annual disclosure—a. The following persons

shall file with the city clerk a report disclosing certain

financial interests as hereinafter provided:

1. Each elected officer described in sections four,

twenty-three, twenty-four, eighty-one and ninety-one

of the New York City charter shall file such report not

later than June thirtieth, nineteen hundred and

seventy-five and thereafter not later than June thir-

tieth of each year except, in the year in which such

elected officer is a candidate for re-election or a can-

didate for one of the other offices hereinabove set

forth, then and in that event such elected officer, as a

candidate, shall file on or before the last day for filing

his designating petitions pursuant to the election law.

2. Each person who has declared his intention to

seek nomination or election, or on whose behalf a

declaration or nominating paper or petition has been

made or filed which has not been declined, for an office

described in paragraph one of subdivision a of this sec-

tion shali file such report on or before the last day for

filing his designating petitions pursuant to the elec-

tion law.

3. a. Each head of an administration, each deputy

administrator, assistant administrator, each agency

head or board member of such agency, commissioner,

deputy commissioner, assistant commissioner, and

each city employee whose salary is twenty-five thou-

sand dollars a year or more shall file such report not

later than June thirtieth, nineteen hundred and

seventy-five and not later than June thirtieth of each

year thereafter.

28a

b. The report shall contain the following informa-

tion:

1. List the name, address and type of practice

of any professional organization in which the per-

son reporting or his spouse, is an officer, director,

partner, proprietor or employee, or serves in any

advisory capacity, from which income of one

thousand dollars or more was derived during the

preceding calendar year.

2. List the source of each of the following items

received or accrued during the preceding calendar

year by the person reporting or his spouse.

(a) any income for services rendered, other

than any source of income otherwise disclos-

ed pursuant to paragraph one, of one thou-

sand dollars or more;

(b) any capital gain from a single source of

one thousand dollars or more other than

from the sale of a residence occupied by the

person reporting;

thousand dollars or more in each instance;

(d) honoraria from a single source in the ag-

gregate amount of five hundred dollars or

more;

(e) any gift in the aggregate amount or

value of five hundred dollars or more from

any single source received during the

preceding year, except as otherwise provided

under the election law covering campaign

contributions.

3. List each creditor to whom the person repor-

ting or his spouse was indebted for a period of

ninety consecutive days or ‘more during the

preceding calendar year in an amount of five

thousand dollars or more.

4. List the identity of each investment and each

29a

parcel of real property in which a value of twenty

thousand dollars or more was held by the person

reporting or his spouse at any time during the

preceding calendar year, based on the cost

thereof or when acquired by means other than

purchase, an estimate of the value at the time of

receipt.

5. List the identity of each trust or other

fiduciary relation in which the person reporting

or his spouse held a beneficial interest having a

value of twenty thousand dollars or more during

the preceding calendar year.

6. (a) Indicate if the total amount of income

received from each and every source listed (1) pur-

suant to the provisions of paragraph one and sub-

paragraphs a, b and c of paragraph two of this

section is at least one thousand dollars but less

than five thousand dollars; at least five thousand

dollars but less than twenty-five thousand

dollars; at least twenty-five thousand dollars but

less than one hundred thousand dollars or one

hundred thousand dollars or more; and (2) pur-

suant to the provisions of subparagraphs d and e

of paragraph two of this section is less than one

thousand dollars; at least one thousand dollars

but less than five thousand dollars; at least five

thousand dollars but less than twenty-five thou-

sand dollars; at least twenty-five thousand

dollars but less than one hundred thousand

dollars or one hundred thousand dollars or more.

(b) Indicate if the total amount of indebtedness

owed each creditor listed pursuant to paragraph

three of this section was at least five thousand

dollars but less than twenty-five thousand

dollars; at least twenty-five thousand dollars but

less than one hundred thousand dollars; at least

one hundred thousand dollars but less than five

hundred thousand dollars or over five hundred

thousand dollars.

30a

and real property interest identified pursuant to

paragraph four of this section and each beneficial

interest identified pursuant to paragraph five of

this section was, during the reporting period, at

least twenty thousand dollars but less than one

hundred thousand dollars; at least one hundred

thousand dollars but less than five hundred thou-

sand dollars or five hundred thousand dollars or

c. Information filed pursuant to the provisions of

this section shall be maintained by the city clerk and

shall be made available to taxpayers pursuant to sec-

tions eleven thirteen and eleven fourteen of the city

charter.

d. Any intentional violation of the provisions of this

section shall constitute a misdemeanor punishable by

imprisonment for not more than one year or by a fine

not to exceed one thousand dollars or by both.

e. If any provision of this section shall be held in-

valid or ineffective in whole or in part or inapplicable

to any person or situation, it is the purpose and intent

of this section that all other provisions hereof shall

nevertheless be separately and fully effective and that

the application of any such provision to other persons

or situations shall not be affected. (Added by L. L.

1975, No. 1, January 8.)”

3la

APPENDIX “C”’

STATUTORY PROVISION OF LOCAL LAW 48

2. New York City Local Law 48 of 1979:

“Section 1. Paragraphs one and three of subdivi-

sion a of section 1106-5.0 of chapter forty-nine of the

administrative code of the city of New York are

hereby amended to read, respectively as follows:

1. Each elected officer described in sections four,

twenty-three, twenty-four, eighty-one and ninety-one

of the New York city charter shall file such report not

later than September first nineteen hundred seventy-

nine and thereafter not later than July first of each

year except, in the year in which such elected officer is

a candidate for re-election or a candidate for one of the

other offices hereinabove set forth, then and in that

event such elected officer, as a candidate, shall file on

or before the last day for filing his designating peti-

tions pursuant to the election law.

3. Each agency head, deputy agency head, assistant

agency head member of any board or commission,

other than a member of a board or a commission who

serves without conpensation and each city employee

who is a member of the management pay plan or

whose salary is thirty thousand dollars a year or more

shall file such report not later than September first

nineteen hundred seventy-nine and not later than July

first of each year thereafter.

§2. Subdivision c of such sector of such chapter

and code is hereby amended to read as follows:

c. Information filed pursuant to the provisions of

this section shall be maintained by the city clerk and

shall be made available for public inspections subject

32a

to the provisions of subdivisions d, e and f of this sec-

tion.

§3. Subdivisions d and e of such section of such

chapter and code are hereby relettered to be g and h,

respectively, and three new subdivisions, to be sub-

aivisions d, e and f, are hereby added to read as

follows:

d. 1. Any person required to file a report pursuant to

this section may, at the time the report is filed or at

any time thereafter, except when a request for inspec-

tion is pending, submit a request to the board of

ethics, in such form as the board shall require, to

withhold any item disclosed therein from public in-

spection on the ground that the inspection of such

item by the public would constitute an unwarranted

invasion of his or her privacy. Such request shall be in

writing and shall be in such form as the board of ethics

shall prescribe and shall set forth the reason such per-

son believes the item should not be disclosed. The city

clerk, upon receiving a written request by a member of

the public, on such form as the board of ethics shall

prescribe, to examine an item for which a written re-

quest to withhold information on the ground of

privacy was submitted pursuant to this paragraph

shall refer such request to the board of ethics and

notify the person who filed the report that a request

for inspection has been made. Whenever a request is

made by a member of the public to examine a report,

whether or not a request for privacy protection has

been made, the city clerk shall so notify the person

who filed the report.

2. The board of ethics shall evaluate such claim and

any such item shall be withheld from public inspection

upon a finding by the board that the inspection of

such item by the public would constitute an unwar-

ranted invasion of privacy. In making this determina-

tion, the board shall consider the following factors:

33a

(a) whether the item is of a highly personal

nature;

(b) whether the item in any way relates to the

duties of the positions held by such person;

tial conflict of interest.

3. The board of ethics shall establish procedures for

the consideration of requests for withholding informa-

tion on the ground of privacy. Such procedures shall

include provisions for the person who filed the infor-

mation to appear in person to set forth, or submit a

written statement setting forth, the reasons why the

information should be withheld from public inspec-

tion.

4. The determination of the board of ethics shall be

in writing and shall set forth the reasons for such

determination. The board shall forward its determina-

tion to the city clerk. Except for those items, if any,

that the board of ethics finds would constitute an un-

warranted invasion of privacy ‘f disclosed, the city

clerk shall make available to the person making such

request the information requested.

e. Reports filed pursuant to this section shall be re-

tained by the city clerk for a period of two years

following the termination of the public employment of

the person who filed the report. In the case of can-

didates for office who have filed reports pursuant to

this section and who were not elected, the reports shall

be retained by the city clerk for a period of two years

following the day of an election on which the can-

didates were defeated. Such reports shall thereafter be

destroyed by the city clerk unless a request for public

disclosure of an item continued in such report is pen-

ding. In lieu of the destruction of such reports, the ci-

ty clerk, in his discretion, may establish procedures

providing for their return to the persons who filed

them.

34a

f. For the purposes of this section, the board of

ethics shall mean the public members of the board of

ethics appointed pursuant to section twenty-six hun-

dred of the charter. Neither the corporation counsel

nor the director of personnel shall participate in any

determination made pursuant to this section.

§4. All reports filed pursuant to local law number

one for the year nineteen hundred seventy-five which

were filed with the city clerk prior to the effective date

of this local law shall be destroyed by the city clerk.

§5. This local law shall take effect immediately.”’

35a

APPENDIX ‘‘D”’

OPINION OF DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

James SLEVIN, Mary Slevin, Brian Clinton, Joan

Clinton, Dr. Stanley C. Fell, and Frank D’Amico, on

their own behalf and on behalf of all others similarly

situated,

Vv.

CITY OF NEW YORK; New York City Board of

Ethics; Edward I. Koch, as Mayor of the City of New

York; and David N. Dinkins as City Clerk, Defen-

dants.

John J. BARRY, Marguerite V. Barry and James

Grebhardt, on their own behalf and on behalf of all

others similarly situated, Plaintiffs,

Vv.

CITY OF NEW YORK; New York City Board of

Ethics; Edward I. Koch, as Mayor of the City of New

York; and David N. Dinkins, as City Clerk, Defen-

dants.

Nos. 79 Civ. 4524 (ADS), 79 Civ. 4627 (ADS).

United St. ‘es District Court,

S.D. New York.

Nov. 24, 1982.

As Amended Dec. 15, 1982

Class actions were brought presenting challenge

to financial disclosure law enacted by New York City

council and approved by mayor. The District Court,

36a

Sofaer, J., held that: (1) financial disclosure law was in-

valid insofar as it permitted city clerk or any other

government employee to make available for public in-

spection information filed pursuant to law by uniform-

ed members of New York City fire and police depart-

ments who earned over $30,000 per year and their

spouses, and (2) financial disclosure law was valid in-

sofar as it required disclosure to city government of

financial data.

Ordered accordingly.

1. Constitutional Law Key 82(7)

Right of privacy, as protected by common law and

Constitution, relates to private revelations or direct

public regulation of intimate activity, rather than to

disclosures by government of information obtained

and published for some public purpose. U.S.C.A. Con-

st. Amends. 1, 4.

2. Municipal Corporations Key 218(1)

City is constitutionally free to abuse its

employees and their families so long as in doing so it is

seeking to achieve proper objective through defensi-

ble means.

3. Searches and Seizures Key 7(1)

Fourth Amendment applies to orderly taking

under compulsion of process. U.S.C.A. Const. Amend.

37a

4. Searches and Seizures Key 7(10)

Financial disclosure law enacted by New York Ci-

ty council and approved by mayor did not infringe

upon public employees’ Fourth Amendment right to

be free of unreasonable searches and seizures where all

of information sought by disclosure law was available

through confidential, in-house inquiries, and thus,

public employees lacked requisite expectation of

privacy, and even if there was a reasonable expecta-

tion of privacy, filing regulations satisfied Fourth

Amendment as they left no room for discretionary

abuse by enforcement officers and therefore required

no warrant to curb narrowly focused intrusions into

privacy rights of those regulated. U.S.C.A. Const.

Amend. 4.

5. Searches and Seizures Key 7(1)

The Fourth Amendment demands only

reasonableness, i.e., that information sought be par-

ticularly described and relevant to inquiry in-

vestigating agency is authorized to make, and that

legislative judgment have reasonable basis. U.S.C.A.

Const. Amend. 4.

6. Criminal Law Key 393(1)

When information individual is asked to provide

is testimony which might tend to show that he had

committed crime, filer is entitled to assert his or her

privilege against self-incrimination. U.S.C.A. Const.

Amend. 5.

38a

7. Criminal Law Key 393(1)

Self-incrimination clause of Fifth Amendment is

not general protector of privacy; it protects against

compelled self-incrimination, not disclosure of private

information. U.S.C.A. Const. Amend. 5.

8. Criminal Law Key 393(1)

Fifth Amendment privilege against self-

incrimination does not justify refusal to file income

tax return simply because certain disclosures might

tend to incriminate. U.S.C.A. Const. Amend. 5.

9. Criminal Law Key 393(1)

Financial disclosure law enacted by New York City

council and approved by mayor did not violate public

employees’ Fifth Amendment protection against com-

pelled testimony that may be self-incriminating where

only small portion of class members challenging law

were engaged in criminal activity, law did not im-

properly coerce public employees to waive their

privilege and failure to inform filers of availability of

privilege was not a constitutional violation since or-

dinance was not part of focused investigation.

U.S.C.A. Const. Amend. 5.

10. Constitutional Law Key 90.1(1), 91

Financial disclosure law enacted by New York Ci-

ty council and approved by mayor did not violate

public employees’ First Amendment rights of speech

and association where law was not adopted for pur-

pose of requiring disclosure of organizational member-

ship, filing requirements did not seek to expose First

39a

Amendment activities for sake of exposure or

specifically for purpose of revealing political associa-

tions, and public employees challenging law failed to

demonstrate that economic reprisal, loss of employ-

ment, threat of physical coercion, and other

manifestations of public hostility would befall them.

U.S.C.A. Const. Amend. 1.

il. Constitutional Law Key 82(7)

Actions affecting confidentiality strand of

privacy are subject to judicial scrutiny more exacting

than ‘rational basis” review, though precise standard

of review remains subject of dispute. U.S.C.A. Const.

Amend. 14.

12. Constitutional Law Key 82(11)

Financial disclosure law enacted by New York Ci-

ty council and approved by mayor did not violate

Fourteenth Amendment right to privacy where filing

requirement, accompanied by access limited to

government investigators, would not substantially

alter status quo and therefore would not offend

substantial interest in confidentiality, filing require-

ment, coupled with access to forms, would not have

significant impact on recognized autonomy interests,

and inclusion of spousal finances in filing re

quirements was justified despite desire of some

spouses to keep their finances secret from filing

employee as failure to record disclosure of spousal

finance, would render law meaningless because filer

who wished to evade financial reporting requirements

of law could easily funnel money and property to

spouse. U.S.C.A. Const. Amend. 14.

40a

13. Municipal Corporations Key 111(2)

Financial disclosure law enacted by New York Ci-

ty council and approved by mayor was invalid insofar

as it permitted city clerk or any other government

employee to make available for public inspection infor-

mation filed pursuant to law by uniformed members

of New York City fire and police departments who

earned over $30,000 per year and their spouses where

threat of public disclosure of specific areas of in-

dividual’s life that involved highly personal matters

seemed especially grave invasion of privacy and fur-

ther limited utility and significance of privacy

mechanism, and public disclosure would not provide a

means to control corruption and conflicts of interest.

14. Municipal Corporations Key 111(4)

Invalid part of financial disclosure law enacted by

New York City council and approved by mayor could

be severed from valid portion as upholding valid pro-

visions would not harm any interests city council

sought to advance by law.

Gordon & Shechtman, P.C., New York City, for

Slevin plaintiffs; Murray A. Gordon and Richard M.

Betheil, New York City, of counsel.

Schofield & Dienst, New York City, for Barry

plaintiffs; John P. Schofield, New York City, of

counsel.

Frederick A.O. Schwartz, Jr., Corp. Counsel, New

York City, for defeiudants; Deborah Rothman and

Denise Thomas, New York City, of counsel.

4la

New York Civil Liberties Union, New York City,

amicus curiae; Arthur Eisenberg, New York City, of

counsel.

OPINION AND ORDER

SOFAER, District Judge:

These class actions present a challenge to one of

the scores of financial disclosure laws adopted by

legislatures at al! levels of American government

since the political scandals of the Nixon Administra-

tion. Plaintiffs represent uniformed members of the

New York City Fire and Police Departments who earn

over $30,000 per year, and their spouses. They

challenge the constitutionality of Local Law 48 of

1979, N.Y.C. Admin. Code §1106-5.0 (hereinafter ““LL

48’’), a financial disclosure law enacted by the New

York City Council and approved by the Mayor. Plain-

tiffs claim that LL 48, as it applies to them, violates

their constitutional rights under the first, fourth,

fifth, ninth, and fourteenth amendments to the United

States Constitution.

Financial disclosure laws were recognized long

before the “‘Watergate’’ scandal as a potentially

useful device for discovering and deterring conflicts of

interest. Post-Watergate developments, however,

have dramatically expanded the number, scope, and

impact of disclosure laws. Few jurisdictions had

adopted disclosure laws prior to 1970; those that ex-

isted in general applied to officials holding policymak-

ing positions, and required disclosure, limited to the

government involved or tu other interested persons, of

financial facts relevant to the work of the reporting of-

ficer. Since then, hundreds of such laws have been

42a

adopted at ail levels of government; they frequently

apply to large groups of employees, including civil ser-

vice personnel having little or no important

policymaking power and they require disclosure to all

members of the public, irrespective of any need to

know or purpose in knowing, of all the financial facts

concerning the reporting employee or official as well

as those concerning all members of the reporting per-

son’s family.’

The significance of these developments has been

heightened by the large number of Americans now

employed by government. Furthermore, since many

financial disclosure laws affect not only the privacy of

government employees but also the privacy of their

spouses and other household members, the number of

affected individuals is far greater than the number of

employees actually covered. Financial disclosure laws

thereby potentially invade the privacy of millions of

Americans as individuals and in their marital and

family relations.”

Legislatively mandated financial disclosure laws

do not normally violate the first, fourth, or fifth

amendments to the Constitution. If any constitu-

tional principle provides protection against disclosure

of private, financial information it is the concept of

privacy. Justice Harlan, in his illuminating dissent in

Poe v. Uliman, 367 U.S. 497, 540, 81 S.Ct. 1752, 1775,

6 L.Ed.2d 989 (1961), recognized that the Constitution

is “the basic charter of our society, setting out in

spare but meaningful terms the principles of govern-

ment.’’ The Constitution must protect “legitimate ex-

pectations of privacy,’’ he wrote, not only against

physical or electronic invasions but against “‘all

unreasonable intrusion of whatever character.’’ Id. at

550, 81 S.Ct. at 1780. See also Olmstead v. United

43a

States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed.

944 (1928) (Brandeis, J., dissenting). More recently,

the Supreme Court has indicated that the interest in

avoiding disclosure of personal information is con-

stitutionally protected. Nixon v. Administrator of

General Services, 433 U.S. 425, 97 S.Ct. 2777, 53

L.Ed.2d 867 (1977); Whalen v. Roe, 429 U.S. 589, 97

S.Ct. 869, 51 L.Ed.2d 64 (1977). Yet, while virtually

every court that has considered financial disclosure

laws has stated that the Constitution shields in-

dividual and family privacy as to financial matters,

few courts have placed constitutional limits of any

sort on legislatures requiring financial disclosures and

providing that they be availabie to the public.®

[1] Powerful reasons explain why courts have pro-

perly been restrained in reviewing disclosure laws on

privacy grounds. The right of privacy, as protected by

common law and the Constitution, relates to private

revelations or direct public regulation of intimate ac-

tivity, rather than to disclosures by government of in-

formation obtained and published for some public pur-

pose.‘ Financial disclosure laws are analogous to long

accepted, lawful techniques for obtaining information

reasonably necessary for governmental objectives.

Furthermore, the objectives sought by financial

disclosure laws are in principle unassailable and

theoretically justify a broad scope of inquiry. Honest

government is so patently a worthy objective, and the

capacity for venality in human behavior is so pro-

found and ingenious, that virtually any disclosure law

however intrusive might be rationally justifiable.

Financial disclosure laws also derive considerable

strength from the benefits widely felt to be derived

from openness and from an informed public. Justice

Brandeis, an eloquent advocate of privacy, said:

44a

‘Publicity is justly commended as a remedy for social

and industrial diseases. Sunlight is said to be the best

of disinfectants; electric light the most efficient

policeman.’ Brandeis, Other People’s Money and

How the Bankers Use It 62 (1914), quoted in Plante v.

Gonzalez, 575 F.2d 1119, 1127 n. 13 (5th Cir. 1978).

The interest in an informed citizenry also supports a

legislature’s decision to adopt financial disclosure

legislation. An informed public is essential to the na-

tion’s success, and a fundamental objective of the first

amendment. See Red Lion Broadcasting Co. v. FCC,

395 U.S. 367, 390, 89 S.Ct. 1794, 1806, 23 L.Ed.2d 371

(1969); New York Times Co. v. Sullivan, 376 U.S. 254,

269, 84 S.Ct. 710 720, 11 L.Ed.2d 686 (1964).

The absence of any clear constitutional provision

expressly protecting privacy no doubt adds to the

judiciary’s reluctance to fashion limits on laws

justified as seeking to make government more ethical.

None of the more specific and relatively well-defined

provisions of the Bill of Rights applies to financial

disclosure legislation. Courts are therefore left to con-

sider possible limits based only upon the general right

of privacy, an interest that permeates our constitu-

tional scheme but finds no specific expression. While

some former Justices of the Supreme Court could peer

into the constitutional penumbra and discern with

confidence the contours of the privacy right, less vi-

sionary readings now prevail. The sweeping claims

generally advanced by plaintiffs challenging such

laws have made judicial involvement even less tenable

than the interests at stake might warrant. Courts

have rarely if ever been provided the evidence in

specific cases that might establish the propriety of

limited protections against the overbroad use of an

otherwise proper legislative device.

45a

To the extent plaintiffs in these cases have

presented a facial attack on LL 48, their challenge

must fail. The Supreme Court’s affirmances without

opinion of three decisions upholding disclosure laws

leave no room for an attack on LL 48’s constitutional-

ly as a whole. But plaintiffs in this case insisted,

refreshingly, that the Court consider their particular

claims, and not merely pass on the law as an abstract

exercise. They produced comprehensive evidence of

the law’s purposes, its legislative background, its

scope, its expected effects, and its potential utility.

They also proved facts about themselves as municipal

servants and human beings, the jobs they do, their

record of performance, their fears and feelings.

[2] Plaintiffs introduced strong evidence to sup-

port their claims that they should be relieved entirely

of the burdens and intrusions created by LL 48. One

could reasonably conclude from their evidence that

LL 48 is a thoughtless and unwise intrusion by the Ci-

ty into the lives of many of its most valued employees.

But the City is constitutionally free to abuse its

employees and their families, so long as in doing so it

is seeking to achieve a proper objective through a

defensible means. Furthermore, with respect to the

law’s obligation that plaintiffs file the forms required

by LL 48, plaintiffs lack any strong expectation of

privacy, since such information is already available to

the Fire and Police Departments, and the City was

able to establish that disclosures of the information to

City government might help deter and detect conflicts

of interest and venality.

Plaintiffs did succeed, however, in establishing

that on the present record the public disclosure aspect

of the challenged law would interfere substantially

46a

with their privacy interests in autonomy and con-

fidentiality. The law contains a mechanism that would

enable covered employees to seek to have highly per-

sonal matters kept from public view. But that

mechanism would itself be greatly destructive of

privacy. Plaintiffs also proved that the public

disclosure component of LL 48 serves no defensible

purpose with respect to plaintiffs in this case. Public

disclosure serves the useful purposes of deterring and

detecting corruption, of enabling the public to per-

form its legislative and elective roles, and of increas-

ing public confidence in and knowledge about govern-

ment by enabling the public to evaluate all the facts

relevant to public issues, including the financial facts

about government policymakers. But these purposes

lacked any evidentiary support or rational basis in

this particular case. Plaintiffs are not elected, and

they lack policymaking roles; rather, they are civil ser-

vants who achieved the lower managerial ranks of

their agencies through success on competitive exams,

after many years of service. The law’s purpose as to

these plaintiffs appears to be disclosure for

disclosure’s sake.

On the basis of the findings and conclusions that

follow in this opinion, therefore, the City’s financial

disclosure law is upheld insofar as it requires

disclosure to the City government of the family finan-

cial data sought from the plaintiff groups. The law is

invalid, however, insofar as it mandates disclosure of

all the information collected from the plaintiff groups,

to any person irrespective of purpose or need.

47a

LL 48 requires, on pain of criminal penalty,® that

all covered individuals file annual financial

statements with the City. The ordinance covers can-

didates for City office, most elected and appointed of-

ficials, and all civil service employees of the City who

earn $30,000 per year or more.* LL 48 requires that

these people disclose the following information:

“the name, address and type of practice of any profes-

sional organization in which the person reporting or

his spouse’ has any interest ‘‘from which income of

one thousand dollars or more was derived during the

preceding calendar year,” §1106-5.0b, subd. 1;

the source of items “received or accrued during the

preceding calendar year’’ by the employee or his or her

spouse constituting income for services rendered of

$1,000 or more, §1106-5.0b, subd. 2; each capital gain

of $1,000 or more from a single source, other than

from the sale of the reporting person's resicence, id.;

reinbursement for expenditures of $1,000 or more ‘“‘in

each instance,” and honoraria or gifts from a single

source aggregating $500 or more, id.;

each creditor to whom the employee or spouse owed

$500 or more for 90 days or more during the preceding

year, §1106-5.0b, subd. 3;

the value and address of each investment or parcel

of real property worth $20,000 or more held by the per-

son reporting or spouse, §1106-5.0b, subd. 4;

and each trust or other fiduciary relation in which

the employee or spouse held a beneficial interest hav-

ing a value of $20,000 or more, §1106-5.0b, subd. 5.

The identity, source, and amount of each of the forego-

ing must be reported in detail. §§1106-5.0b, subd. 1-6.

48a

The completed forms are filed with the City Clerk,

who must automatically make them available to any

member of the public, §1106-5.0c, unless the employee

has requested the City’s Board of Ethics in writing

that a specific item be withheld because public

disclosure of it would constitute an unwarranted inva-

sion of privacy, §1106.5d.

No action is taken on privacy claims until a re-

quest for inspection of a particular form is filed by a

member of the public. When a request for inspection is

made, the law requires that the public members of the

Board of Ethics rule on all privacy claims after con-

sidering three factors: whether the item is of ‘‘a highly

personal nature’; whether it ‘‘in any way relates to

the duties of the position held by such person’’; and

whether it ‘‘involves an actual or potential conflict of

interest.’’ §1106-5d, subd. 2. The Board must render a

written decision and forward it to the City Clerk. The

Clerk may then make the form requested available for

disclosure, except those items exempted from

disclosure by a decision of the Board. §1106-5d, subd.

LL 48 is a modified version of a disclosure law

passed by the City Council in 1975, Local Law 1 of

1975 (“LL 1”). The New York courts declared the

public disclosure provisions of LL1 invalid because

the law did not safeguard privacy interests. Hunter v.

City of New York, 58 A.D.2d 136, 396 N.Y.S.2d 186

(1st Dep’t 1977), aff'd, 44 N.Y.2d 708, 405 N.Y.S.2d

455, 376 N.E.2d 928 (1978). LL 48 differs from LL 1

principally in that the Council added the “privacy

mechanism’”’ just described.

After passage of LL 48 in 1979, certain members

49a

of the New York City Fire Department and their

spouses filed one of the instant actions to enjoin its

application to them. Slevin v. City of New York, No.

79 Civ. 4524 (S.D.N.Y.). The plaintiff classes in Slevin

include Fire Department Battalion Chiefs, Deputy

Chiefs, Medical Officers, and the spouses of these

three officer classes. The officers involved are all

uniformed city employees, occupying competitive

civil service positions, who are required to file finan-

cial disclosure reports because they earn over $30,000

annually. This Court preliminarily enjoined applica-

tion of LL 48 to these plaintiffs on September 6, 1979.

Slevin v. City of New York, 477 F. Supp. 1051

(S.D.N.Y. 1979). Just prior to issuance of that

preliminary injunction, certain members of the New

York City Police Department and their spouses filed

the companion action, Barry v. City of New York, No.

79 Civ. 4627 (S.D.N.Y.), challenging LL 48 as applied

to them. The Barry plaintiffs also represent four

groups: Captains, Lieutenants, Police Surgeons, and

their spouses. All the officers represented are uniform-

ed city employees, occupying competitive civil service

positions, who earn in excess of $30,000 annually. On

September 10, 1979, the preliminary injunction issued

in Slevin was expanded to include the Barry plaintiffs.

The matters were consolidated, and tried on the

merits, after which the parties briefed the issues prior

to submitting the case for judgment.

Defendants urge the outright rejection of plain-

tiffs’ claims, because the Supreme Court has dismiss-

ed for lack of a substantial federal question three ap-

peals from decisions by state supreme courts

upholding financial disclosure laws. Montgomery

50a

County v. Walsh, 274 Md. 502, 336 A.2d 97 (1975),

app. dismissed, 424 U.S. 901, 96 S.Ct. 1091, 47

L.Ed.2d 306 (1976); Fritz v. Gorton, 83 Wash. 2d 275,

517 P.2d 911 (en banc), app. dismissed, 417 U.S. 902,

94 S.Ct. 2596, 41 L.Ed.2d 208 (1974); Stein v. Howlett,

52 Ill.2d 570, 289 N.E.2d 409 (1972), app. dismissed,

412 U.S. 925, 93 S.Ct. 2750, 37 L.Ed.2d 152 (1973).

These dismissals are dispositions on the merits, bin-

ding on ‘‘the precise issues presented and necessarily

decided by those actions.’ Mandel v. Bradley, 432

U.S. 178, 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199

(1977) (per curiam); see Hicks v. Miranda, 422 U.S.

332, 344, 95 S.Ct. 2281, 2289, 45 L.Ed.2d 223 (1975);

Port Authority Bondholders Protective Comm. v. Port

of New York Authority, 387 F.2d 259, 262 n. 3 (2d Cir.

1967). They do indeed foreclose several of plaintiffs’

claims, epecially in conjunction with other Supreme

Court decisions. But they cannot fairly be said to

preclude all of plaintiffs’ challenges. Here, as in Plante

v. Gonzalez, 575 F.2d 1119, 1125 (5th Cir. 1978), cert.

denied, 439 U.S. 1129, 99 S. Ct. 1047, 59 L.Ed.2d 90

(1979), the statute at issue differs from each of the

statutes upheld in those cases, and the nature of the

challenge made in this case differs in important

respects from the challenges to those statutes.

All three dismissals involved facial challenges to

the disclosure laws at issue; here, plaintiffs challenge

LL 48 as it applies to them. Furthermore, none of the

dismissed cases focused on the constitutionality of re-

quiring public disclosure by employees with little or

no policymaking authority. In Fritz v. Gorton, supra,

only disclosure by elected officials, candidates for elec-

tive office, and lobbyists was at issue. The ordinance

challenged in Montgomery County v. Walsh, supra,

unlike LL 48, provided for disclosure by employees on-

5la

ly ‘‘where it is determined by designated authority

that it is ‘desirable to promote the trust and con-

fidence of the citizens of the County,’ ’’ and exempted

from the filing requirements persons whose job

responsibilities posed little likelihood of conflict of in-

terest or corruption. 336 A.2d at 102. The Illinois

Supreme Court’s opinion in Stein v. Howlett, supra,

was based entirely upon state law, and, as in Fritz and

Montgomery County, the appeal to the United States

Supreme Court was dismissed in 1973, before the

Supreme Court’s decisions in Whalen v. Roe, 429 U.S.

589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) and Nixon v.

Administrator of General Services, 433 U.S. 425, 97

S.Ct. 2777, 53 L.Ed.2d 867 (1977), which both

recognized a constitutional “interest in avoiding

disclosure of personal matters.’’ Whalen v. Roe, 429

U.S. at 599, 97 S.Ct. at 876.

The plaintiff classes in this case have

demonstrated that public disclosure of their finances

will substantially and adversely affect recognized

privacy interests, while serving no substantial public

purpose. The Supreme Court has not considered the

public disclosure aspects of dis: osure laws on a full

evidentiary record, revealing both the effects of and

need for disclosure to the government and to the

public of private information obtained from particular

groups of employees. Consequently, although the

dismissals for lack of a substantial federal question

may ‘‘caution... against finding [LL 48] unconstitu-

tional,”’ Plante v. Gonzalez, supra, 575 F.2d at 1126,

this Court must ‘‘undertake an independent examina-

tion of the merits,’’ Mandel v. Bradley, supra, 432 U.S.

at 177, 97 S.Ct. at 2241.

52a

III

Plaintiffs argue that LL 48 infringes their fourth

amendment right to be free of unreasonable searches

and seizures, their fifth amendment right against

compelled self-incrimination, their first amendment

rights of free speech and association, and their four-

teenth (or ninth) amendment right to privacy, that is,

their right not to be déprived of the liberty interest in

privacy without due process of law. Only the privacy

claim has merit, and only to the extent delineated

below.

A. The Fourth Amendment

[3] The fourth amendment guarantees “‘[t]he right

of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches

and seizures ....’’ U.S. Const. amend. IV. ‘‘[T]jhe evil

the amendment was designed to prevent was broader

than the abuse of a general warrant,’’ Payton v. New

York, 445 U.S. 573, 585, 100 S.Ct. 1371, 1379, 63

L.Ed.2d 639 (1980), though the amendment has not

been ‘‘translated into a general constitutional ‘right to

privacy.’”’ Katz v. United States, 389 U.S. 347, 350,

88 S.Ct. 507, 510, 19 L.Ed.2d 576 (1967). The fourth

amendment seems applicable to governmental ac-

quisition of information whatever means are chosen,

see generally California Bankers Ass’n v. Shultz, 416

U.S. 21, 59-63, 94 S.Ct. 1494, 1516-18, 39 L.Ed.2d 812

(1974) (discussing relevance of fourth amendment to

reporting income as required by federal tax statutes);

certainly it applies ‘‘to the orderly taking under com-

pulsion of process,”’ United States v. Morton Salt Co.,

338 U.S. 632, 651, 70 S.Ct. 357, 368, 94 L.Ed. 401

(1950). ‘[TjJhe Fourth Amendment protects people,

53a

not places... and whenever an individual may harbor

a reasonable ‘expectation of privacy,’ ... he is entitled

to be free from unreasonable governmental

intrusion.” Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868,

1873, 20 L.Ed.2d 889 (1968) (citations omitted).

[4] Plaintiffs have not argued that the fourth

amendment limits the uses to which information

legitimately ‘‘seized’’ may be put. Therefore, plaintiffs

do not contend that the amendment is directly rele-

vant to the provisions permitting public access to the

forms. See Slevin Plaintiff's Post-Trial Memorandum

at 72-74. Insofar as the City has required filing,

however, plaintiffs argument fails because they lack

the requisite expectation of privacy. See Whalen v.

Roe, supra, 429 U.S. at 602, 97 S.Ct. at 877. An

employee in the upper echelons of the Fire or Police

Department, or his or her spouse, cannot reasonably

expect to keep his financial dealings and holdings, or

his address, or any other information required by LL

48, secret from his employer. Plaintiffs established at

trial that all of the information sought by LL 48 is

available to the Fire and Police Departments through

confidential, in-house inquiries. Transcript of Trial

(Nov. 6, 7, 12, 13, 1980) at 524-25 [hereinafter ‘‘T.’’);

Transcript of Trial (Dec. 3, 1980) at 60-68 [hereinafter

“Tah

[5] If plaintiffs had a reasonable expectation of

privacy, the filing regulations would nevertheless

satisfy the fourth amendment. In this context the

amendment demands only reasonableness, i.e., that

the information sought be “particularly described”

and relevant to an inquiry the investigating agency is

authorized to make, and that the legislative judgment

have a reasonable basis. California Bankers Ass'n v.

54a

Shultz, supra, 416 U.s. at 62-63, 94 S.Ct. at 1518;

Camara v. Municipal Court, 387 U.S. 523, 536-37, 87

S.Ct. 1727, 1734, 18 L.Ed.2d 930 (1967); Oklahoma

Press Pub. Co. v. Walling, 327 U.S. 186, 208-09, 66

S.Ct. 494, 505, 90 L.Ed. 614 (1946); O’Brien uv.

DiGrazia, 544 F.2d 5438, 546 (1st Cir. 1976), cert.

denied, 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed. 2d 223

(1977). The uniform application of the filing regula-

tions leaves no room for discretionary abuse by en-

forcement officers and therefore requires no warrant

to curb narrowly focused intrusions into the privacy

rights of those regulated. See Camara v. Municipal

Court, supra, 387 U.S. at 530-32, 87 S.Ct. at 1732; See

vu. City of Seattle, 387 U.S. 541, 544, 87 S.Ct. 1737,

1739, 18 L.Ed.2d 943 (1967); cf. Nixon v. Ad-

ministrator of General Services, 433 U.S. 425, 464 n.

26, 97 SCt. 2777, 2801 n. 26, 53 L.Ed. 867 (1977). The

information sought by the forms is uniform, described

in detail, and relevant in general to the proper govern-

mental objectives of investigating and deterring con-

flicts of interest. While the scope of inquiry mandated

by LL 48 is broad, it cannot be equated with a general

warrant, since each type of information sought has

logical relevance to valid government objectives.

B. The Fifth Amendment

[6] Plaintiffs also assert that LL 48 “implicates

the Fifth Amendment protection against compelled

testimony that may be self-incriminating.’’ Slevin

Plaintiff's Post-Trial Memorandum at 74-75. Methods

employed by the state in requiring disclosures must

be ‘consistent with the limitations created by the

privilege.”” Marchetti v. United States, 390 U.S. 39,

55a

44, 88 S.Ct. 697, 700, 19 L.Ed.2d 889 (1968). LL 48 af-

fixes a criminal penalty to failure to respond to the

questionnaire, so it exerts real compulsion upon

covered employees. See Counselman v. Hitchcock, 142

U.S. 547, 562, 12 S.Ct. 195, 197, 35 L.Ed. 1110 (1892).

Further, LL 48 elicits ‘‘testimony”’ rather than requir-

ing production of pre-made financial records. See

Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct.

1569, 1579, 48 L.Ed.2d 39 (1976). Where the informa-

tion an individual is asked to provide is ‘‘testimony

which might tend to show that [he] had committed a

crime,’’ Counselman v. Hitchcock, supra, 142 U.S. at

562, 12 S.Ct. at 197; See Leffkowitz v. Turley, 414

U.S. 70, 77, 94 S. Ct. 316, 322, 38 L.Ed.2d 274 (1973),

the filer is entitled to assert his or her privilege

against self-incrimination.

[7-9] But the fact that the privilege might be

available to individuals within the plaintiff classes

does not invalidate the law. Like the fourth amend-

ment, the self-incrimination clause of the fifth amend-

ment is not ‘‘a general protector of privacy... . [T]he

Fifth Amendment protects against ‘compelled self-

incrimination.’’’ Fisher v. United States, supra, 425

U.S. at 401, 96 S.Ct. at 1576 (quoting United States v.

Nobles, 422 U.S. 225, 233 n. 7, 95 S.Ct. 2160, 2167 n.

7, 45 L.Ed.2d 141 (1975)). Thus, the privilege does not

justify refusal to file an income tax return simply

because certain disclosures might tend to incriminate.

United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607,

71 L.Ed. 1037 (1927). This is not a case like Marchetti

v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d

889 (1968), or Grosso v. United States, 390 U.S. 62, 88

S.Ct. 709, 19 L.Ed.2d 906 (1968), where the com-

pulsory disclosure applied only to a group “‘the great

56a

majority of whom [are] likely to incriminate

themselves by responding.’’ Garner v. United States,

424 U.S. 648, 660, 96 S.Ct. 1178, 1185, 47 L.Ed.2d 370

(1976). Plaintiffs exerted much effort at trial suc-

cessfully establishing that only a small proportion of

class members are engaged in criminal activity. True,

the disclosure forms at issue are not directed to the

public at large; but, as with tax returns, ‘‘[t]he great

majority of persons”’ filing these forms will ‘‘not in-

criminate themselves’’ by filing. Garner v. United

States, supra, 424 U.S. at 661, 96 S.Ct. at 1186.

Nor does LL 48 improperly coerce plaintiffs to

waive the privilege. As with income tax statutes, if

the form calls for answers that a particular filer is

privileged from making he can raise the objection on

the form. United States v. Sullivan, supra, 274 U.S. at

263, 47 S.Ct. at 607. A conviction under LL 48 for

failure to respond ‘‘cannot be based on a valid exercise

of the privilege.’’ Garner v. United States, supra, 424

U.S. at 662, 96 S.Ct. at 1186. “As long as a valid and

timely claim of privilege is available as a defense”’ for

failure to file, the fifth amendment is not violated. Jd. .

at 665, 96 S. Ct. at 1188. Moreover, plaintiffs could

not be discharged from their jobs solely because they

claimed the privilege on the form, because the form

does not contain ‘‘questions specifically, directly, and

narrowly relating to the performance of [their] official

duties...’ Gardner v. Broderick, 392 U.S. 273, 278,

88 S.Ct. 1913, 1916, 20 L.Ed.2d 1082 (1968) (footnote

omitted). Neither the statute nor the questionnaire

makes the prohibited suggestion that a failure to

waive the privilege will result in dismissal. See Garri-

ty v. New Jersey, 385 U.S. 493, 497-98, 87 S.Ct. 616,

618, 17 L.Ed.2d 562 (1967). Finally, the

questionnaire’s failure to inform filers of the

57a

availability of the privilege is not a constitutional

violation, since the ordinance is not part of a focused

investigation. See Escobedo v. Illinois, 378 U.S. 478,

490-91, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977 (1964).’

C. The First Amendment

[10] Plaintiffs have failed to establish that LL 48

will significantly inhibit the exercise of their first

amendment rights of speech and association. LL 48

was not adopted for the purpose of requiring

disclosure of organizational membership. Statutes

that require such disclosures have been held to violate

the first amendment where they were found to have

been intended to restrain the freedom of association.

See, e.g., Louisiana ex rel. Gremillion v. NAACP, 366

U.S. 293, 81 S.Ct. 1333, 6 L.Ed.2d 301 (1961); Shelton

v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231

(1960); NAACP v. Alabama ex rel. Patterson 357 U.S.

449, 78 S. Ct. 1163, 2 L.Ed.2d 1488 (1958). Here, as

Judge Wisdom noted in Plante v Gonzalez, supra, 575

F.2d at 1132, ‘‘memberships, associations, and beliefs

are revealed, if at all, only tangentially.”’ The law re-

quires disclosure of certain assets, income, debts,

gifts, and reimbursements, and therefore neither

focuses on some political or religious financial rela-

tionships as opposed to others, nor discriminates

among those political or religious affiliations that

might be revealed. Moreover, the filing requirements

do not seek ‘‘to expose’’ first amendment activities

“for the sake of exposure,” Watkins v. United States,

354 U.S. 178, 200 77 S.Ct. 1173, 1185, 1 L.Ed.2d 1273

(1957), or specifically for the purpose of revealing

political associations, Gibson v. Florida Legislative

Investigation Comm., 372 U.S. 539, 558, 83 S.Ct. 889,

899, 9 L.Ed.2d 929 (1963), but rather for the sake of

58a

revealing potential financial conflicts of interest or

financial indices of corruption, whatever their source.

To establish a first amendment violation in these

circumstances, plaintiffs must show that the law

would unreasonably inhibit the exercise of their first

amendment rights. They failed to demonstrate that

“economic reprisal, loss of employment, threat of

physical coercion, and other manifestations of public

hostility,’’ Buckley v. Valeo, 424 U.S. 1, 69-70, 96

S.Ct. 612, 658, 46 L.Ed.2d 659 (1976) (per curiam),

would befall them because of the revelations of pro-

tected activity in the form, or that in even a single in-

stance protected activity would be foreclosed.* Con-

ceivably, “‘in some particular situations,’’ where for

example a real threat of retaliation would attend a

specific disclosure, ‘‘vigorous application of [LL 48]

might implicate first amendment freedoms’’; but on

this record ‘‘this threat is too remote to raise the

issue.’’ Plante v. Gonzalez, supra, 575 F.2d at 1132-33;

cf. Buckley v. Valeo, supra, 424 U.S. at 70, 74, 96 S.Ct.

at 659, 661.

Plaintiffs’ strongest argument for protection is

under the fourteenth amendment’s guarantee of the

substantive liberty interest in privacy.*® The right to

privacy is still undefined. Whalen v. Roe, 429 U.S.

589, 598-99 & nn. 23, 24, 97 S.Ct. 869, 876 & nn, 23, 24,

51 L.Ed.2d 64 (1977). See generally, Fried, Privacy, 77

Yale L.J. 475 (1968); Gerety, Redefining Privacy, 12

Harv. C.R.—C.L. L. Rev. 234 (1977); Kurland, The

Private I, University of Chicago Magazine 7, 8

(autumn 1976); Parker,A Definition of Privacy, 27

Rutgers L.Rev. 275 (1974); Posner, The Right of

59a

Privacy, 12 Ga.L.Rev. 393 (1978). But it clearly pro-

tects ‘‘two different kinds of interests.... One is the

individual interest in avoiding disclosure of personal

matters, and another is the interest in independence in

making certain kinds of important decisions.’’ Whalen

v. Roe, supra, 429 U.S. at 598-600, 97 S.Ct. at 875-877.

Those two interests have been labeled interests in

“confidentiality’’ and ‘“‘autonomy.” Plante v. Gon-

zalez, supra, 575 F.2d at 1128.

The autonomy branch of privacy, the more

developed of the two, creates a zone of freedom from

government restrictions on personal choice in ‘‘mat-

ters relating to marriage, procreation, contraception,

family relationships, and child rearing and

education.’’ Paul v. Davis, 424 U.S. 693, 713, 96 S.Ct.

1155, 1166, 47 L.Ed.2d 405 (1976). Cases involving

government regulation of these matters establish that

such laws must satisfy esacting judicial scrutiny. See,

e.g., Zablocki v. Redhail, 434 U.S. 374, 383, 98 S.Ct.

673, 679, 54 L.Ed.2d 618 (1978); Moore v. City of East

Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52

L.Ed.2d 531 (1977) (plurality opinion); Roe v. Wade,

410 U.S. 113, 155-56, 93 S.Ct. 705, 727, 35 L.Ed.2d

147 (1973).

In Plante v. Gonzalez, the Fifth Circuit held that

“{flinancial privacy is not within the autonomy branch

of the right to privacy.”’ 575 F.2d at 1132; accord

O'Brien v. DiGrazia, 544 F.2d 543, 545 (1st Cir. 1976),

cert. denied, 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d

223 (1977). Financial regulation is widespread in this

society, and its direct effects make the “indirect ef-

fects caused by financial disclosure pale by com-

parison.” 575 F.2d at 1131. While noting the Supreme

60a

Court’s recognition in Buckley v. Valeo, 424 U.S. 1,

66, 96 S.Ct. 612, 657, 46 L.Ed.2d 659 (1976), that

financial transactions can reveal much about a

person’s activities, associations, and beliefs, the Fifth

Circuit in Plante found that personal finances cannot

“be protected as incident to protection of the

family. ... There is no doubt that financial disclosure

may affect a family, but the same can be said of any

government action. ...[A]ny influence does not rise

to the level of a constitutional problem.” 575 F.2d at

1131.

The analysis in Plante of the autonomy branch as

it relates to financial disclosure is unassailable to the

extent that it finds no ‘presumptive immunity from

regulation”’ for finarwial affairs. Henkin, Privacy and

Autonomy, 74 Colum. L.Rev. 1410, 1411 (1974). The

autonomy cases do not rest on what Professor Henkin

calls ‘‘hard-core privacy,’’ or what people commonly

mean by privacy. Regulation of marital affairs, or

what one chooses to read, or how one wants to raise

one’s children, is suspect because of the matters

sought to be controlled, not because the regulations

intrude into bedrooms, minds, or bodies. Jd. at

1424-25. ‘‘Financial affairs’ in general has never been

regarded under our Constitution as an area of life that

in itself is so fundamental to liberty that regulation is

automatically deemed suspect. Such regulation is

squarely within the police power, and as an abstract

proposition is if anything presumptively valid.

Financial disclosure may nevertheless substan-

tially, albeit indirectly, affect recognized autonomy in-

terests. The characterization—‘‘financial”’

privacy—should not be permitted, by verbal trick, to

relegate substantia! autonomy claims to the constitu-

6la

tional status reserved for ‘‘economic problems,

business affairs, or social conditions.’ See Griswold v.

Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 1680, 14

L.Ed.2d 510 (1965). Financial privacy is not an

“economic’”’ as opposed to a “‘personal”’ right. Finan-

cial facts are sometimes protected under the Constitu-

tion for essentially the same reasons that homes are

protected—not because finances are ‘‘property,’’ but

because protecting financial affairs is in some situa-

tions a necessary means for protecting the very ‘‘per-

sonal”’ right of privacy. See Nixon v. Administrator of

General Services, supra, 433 U.S. at 529, 97 S.Ct. at

2833 (Burger, C.J., dissenting) (privacy of ‘‘purely

private matters of family, property, investments,

diaries’ is interest of the highest order). Therefore,

even though the adverse effects of government action

on financial privacy are ordinarily insufficient to

justify invoking a presumptive immunity, but see

Comment, Privacy Limits On Financial Disclosure

Laws: Pruning Plante v. Gonzalez, 54 N.Y.U.L.Rev.

601, 613-16 (1979), a court must still decide in each

case what significance to give those effects.

Autonomy and confidentiality interests are

sometimes simultaneously affected, as in this case,

and must be simultaneously considered, albeit by a

less exacting standard than strict scrutiny. Neither

should be disregarded because of a mechanical ap-

plication of current, bifurcated privacy doctrine.

The right to privacy’s confidentiality branch is

‘the individual interest in avoiding disclosure of per-

sonal matters.’’ Whalen v. Roe, supra, 429 U.S. at 599,

97 S.Ct. at 876. Protection for legitimate expectations

of privacy is premised un concern about harms caused

by their violation. See California Bankers Ass'n v.

62a

Shultz, supra, 416 U.S. at 78-79, 94 S.Ct. at 1525

(Powell, J., concurring); City of Carmel-by-the-Sea v.

Young, 2 Cal. 3d 259, 270, 85 Cal. Rptr. 1, 9, 466 P.2d

225, 233 (1970). But, as Judge Wisdom said in Plante

v. Gonzalez, supra, 575 F.2d at 1135, ‘[wJhen a

legitimate expectation of privacy exists, violation of

privacy is harmful without any concrete consequential

damages. Privacy of personal matters is an interest in

and of itself, protected constitutionally... .”

The Supreme Court has on two occasions express-

ly considered the confidentiality branch of privacy. In

Whalen v. Roe, supra, the Court upheld New York

State's prescription drug reporting requirements. The

Court did not establish a standard to be applied to the

interest in avoiding public disclosure of personal mat-

ters, because it was persuaded that the law did not on

its face pose ‘‘a sufficiently grievous threat to [the] in-

terest to establish a constitutional violation.” 429

U.S. at 600, 97 S.Ct. at 877. The statu.e did not make

the disclosed personal information available to the

public, but rather carefully limited access to authoriz-

ed state employees under a strict duty to keep it con-

fidential. Jd. at 597, 97 S.Ct. at 875. Further, the law

provided for destruction of the records after five

years. Jd. at 593, 97 S.Ct. at 873. In essence, the law

did not affect a reasonable expectation of privacy,

because limited disclosure of potentially embarrass-

ing medical information is ‘‘often an essential part of

modern medical practice.’’ Jd. at 602, 97 S.Ct. at 877.

The disclosures mandated differed little ‘from a host

of other unpleasant invasions of privacy that are

associated with many facets of health care.’ Jd; see

is. at 607, 97 S.Ct. at 880 (Brennan, J., concurring).

63a

Any doubt about the constitutional standing of

the interest in avoiding disclosure of personal matters

remaining after Whalen v. Roe, supra, see id. at 608-9,

97 S.Ct. at 881 (Stewart, J., concurring) (arguing that

prior cases do not recognize the right), was removed

by Nixon v, Administrator of General Services, 433

U.S. 425, 97 S.Ct, 2777, 53 L.Ed.2d 867 (1977). In Nix-

on, the former President challenged the Presidential

Recordings and Materials Preservation Act, which

provided for the disposition of great numbers of

documents and tape recordings amassed during his

presidency. Comingled among many official

documents in which Mr. Nixon conceded he had no

privacy interest were a comparatively small number

of his private communications and his wife's private

files. Jd. at 459, 97 S.Ct. at 2798. The Act and im-

plementing regulations provided that professional ar-

chivists would examine all the materials, remove and

return to the plaintiff all private matters, and

preserve the official documents for the government

and the public. The Court determined that Mr. Nixon,

unlike the Whalen plaintiffs, had ‘‘a legitimate expec-

tation of privacy”’ in some of the materials, id. at 465,

97 S.Ct. at 2801, and instead of employing the ‘‘ra-

tional basis” standard, appropriate where no constitu-

tionally protected right is at issue, the Court balanced

the interests involved and upheld the law. The public

interest in preserving the public documents was ‘‘im-

portant”’; the screening was “‘essential’’ if the public

documents were to be preserved and Mr. Nixon's

privacy respected; the personal items would not be

available to the public; and the government ar-

chivists’ record for discretion was ‘‘unblemished.”’ Jd.

at 455-65, 97 S.Ct, at 2796.

64c

[11] Whalen and Nixon make reasonably clear

that auctions affecting the confidentiality strand of

privacy are subject to judicial scrutiny more exacting

than “rational basis’ review, though the precise stan-

dard of review remains a subject of dispute. Some

state courts have applied variants of the ‘‘strict

scrutiny” test to such statutes. E.g., City of Carmel-

by-theSea v. Young, supra. Plaintiffs, although label-

ing it a ‘‘balancing analysis,"’ Slevin Plaintiffs’ Post-

Trial Memorandum at 82, argue for strict scrutiny,

claiming that to be constitutional LL 48 must “‘pro-

mote a compelling state interest and be the means to

accomplish that purpose that is least intrusive of the

constitutionally-protected interest."’ Jd. at 76. This

approach seems inappropriate in reviewing statutes

for breach-of-confidentiality claims. As Judge

Wisdom stated for the Fifth Circuit:

In equal protection cases the Supreme Court has

warned against giving heightened attention to cases

involving new ‘fundamental interests.’’ The Court

has avoided proclaiming such a standard in the two

cases raising the [confidentiality branch of privacy]

issue in which it issued opinions, Whalen v. Roe and

Nixon v. Administrator of General Services. It has

dismissed for want of a substantial federal question

three cases raising the question in financial disclosure

contexts.... Subjecting financial disclosure laws to

the same scrutiny accorded laws impinging on

autonomy rights, such as marriage, contraception,

and abortion, would draw into question many common

forms of regulations, involving disclosure to the

public and disclosure to government bodies.

At the same time, scrutiny is necessary. The

Supreme Court has clearly recognized that the privacy

of one’s personal affairs is protected by the Constitu-

tion. Something more than mere rationality must be

65a

demonstrated. Otherwise, public disclosure re-

quirements ...could be extended to anyone, in any

situation.

Plante v. Gonzalez, supra, 575 F.2d at 1134 (citations

omitted), But see Whalen v. Roe, supra, 429 U.S. at

606, 97 S.Ct. at 879 (Brennan, J., concurring) (‘‘Broad

dissemination by state officials of [personal] informa-

tion... would presumably be justified only by com-

pelling state interests.”’)

Virtually every court considering the question

has, at least nominally, applied some form of in-

termediate scrutiny. Nixon appears to use a balancing

approach, 433 U.S. at 456-57, 97 S.Ct. at 2796, as

defendants concede most lower courts have done.

Defendants’ Post-Trial Memorandum at 50. See, e.g.,

Stein v. Howlett, supra, 289 N.E.2d at 413; Illinois

State Employees Ass'n v. Walker, 57 Ill.2d 512, 315

N.E.2d 9, 15, cert. denied, 419 U.S. 1058, 95 S.Ct. 642,

42 L.Ed.2d 656 (1974); Montgomery County v. Walsh,

supra; Hunter v. City of New York, supra. In Plante v.

Gonzalez, supra, and in Duplantier v. United States,

606 F.2d 654 (5th Cir. 1979), cert. denied, 449 U.S.

1076, 101 S.Ct. 854, 66 L.Ed.2d 798 (1981) the Fifth

Circuit found that challenges to financial disclosure

laws require courts to apply a balancing test ‘‘to

determine whether the legitimate governmental in-

terests furthered ... outweigh [the] incidental intru-

sion upon plaintiffs’ privacy.’ Duplantier v. United

States, 606 F.2d at 670. Both Plante and Duplantier,

however, also suggested a similar but potentially

more restrictive test requiring that such laws

“substantially further important governmental in-

terests.’’ Duplantier, 606 F.2d at 672; see Plante, 575

F.2d at 1134. The propriety of such a test is supported

66a

by its close relation to the approach adopted by the

Supreme Court in so-called ‘‘middle tier’ equal protec-

tion cases. See Plyler v. Doe, _U.S._, _. & n. 16, 102

S.Ct. 2382, 2395 & n. 16, 72 L.Ed.2d 786 (1982) (educa-

tion restrictions based on illegal alien status); Lalli v.

Lalli, 489 U.S. 259, 275-76, 99 S.Ct. 518, 528, 58

L.Ed.2d 503 (1978) (classifications based on alienage);

Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50

L.Ed.2d 397 (1976) (classifications based on sex).

This case, however, does not turn on what precise

intermediate standard of protection is applied to LL

48. To the extent LL 48 orders disclosure by the plain-

tiff groups to the City government, it would be upheld

under the most stringent standard conceivable for

such a financial disclosure statute; it easily satisfies

the balancing approach suggested by Nixon, and ap-

plied in Plante and Duplantier. On the other hand, to

the extent LL 48 provides for disclosure to the public

of all information collected from the plaintiff groups,

limited only by the statute’s ‘‘privacy’’ mechanism, it

fails to satisfy any standard of review other than on

an improperly ‘‘toothless’’ application of ‘‘mere ra-

tionality.’’ See Mathews v. Lucas, 427 U.S. 495, 510,

96 S.Ct. 2755, 2764, 49 L.Ed.2d 651 (1976).

A. Disclosure to the City Government

[12] LL 48 prescribes a two-st»p process. First,

each individual covered by the law must file a

disclosure form with the City Clerk. Second, the Clerk

is to make the forms available to members of the

public, subject only to the privacy mechanism. The

evidence established that autonomy and confidentiali-

ty interests will be somewhat affected by the filing re-

quirement, but that governmental interests in deterr-

67a

ing and detecting conflicts of interest and venality

will be furthered sufficiently to justify that re

quirement.

Plaintiffs concede that in-house procedures in

both the Fire and Police Departments already provide

the City access to all the financial information re-

quired of them by LL 48. T. 525; T.D. 68. This is not a

case like American Federation of Government

Employees v. Schlesinger, 443 F. Supp. 431 (D.D.C.

1978), where even though disclosures would not be

made public they trenched on substantial first amend-

ment interests. Nor does it resemble Shuman v. City

of Philadelphia, 470 F. Supp. 449 (E.D. Pa. 1979),

where mandatory in-house disclosure of a police of-

ficer’s relationship with a paramour was held to in-

trude upon the zone of privacy secure even from a

government employer. Rather, as in Whalen v. Roe,

supra, 429 U.S. at 593, 97 S.Ct. at 873, and O'Brien v.

DiGrazia, supra, 544 F.2d at 546, the filing require-

ment, accompanied by access limited to government

investigators, would not substantially alter the status

quo and therefore would not offend a substantial in-

terest in confidentiality.

Nor will the filing requirement, coupled with

government access to the forms, have a significant im-

pact on recognized autonomy interests. Plaintiffs

presented evidence that LL 48 will prevent them from

making certain choices about how to structure their

family life. Specifically, they established that some

employee plaintiffs choose to keep their financial af-

fairs secret from their spouses, their children, or

members of their extended family. T. 272-82. Similar-

ly, some spouses choose to keep their financial affairs

secret from the spouse who would have to file. T.

68a

280-83. Plaintiffs failed to establish, however, that fil-

ing or government access to the forms will in any way

affect employee choice to keep financial information

from family members. Children, other family

members, and even spouses need not have access to

the forms prior to filing, since only the employee must

verify and sign the form. Family members could ac-

quire the information only as a result of the public

disclosure provisions.

Filing will necessarily compromise a spouse’s

desire to keep secret his or her finances from the filing

employee, and no provision is made in the law for

separate filing by the spouse. Indeed, the employee, as

the filer, just attest to the accuracy of the information

relating to the spouse’s earnings, holdings, debts, and

so forth. But this interest, though substantial in some

families,'® is insufficient to invalidate the filing re-

quirement, either in its entirety or only insofar as it

applies to spouses. Although one spouse testified that

the requirement would “‘strain’’ her marriage, no

evidence suggested that it would significantly affect

the decisions whether to marry, whether and when to

procreate, or other family decisions heretofore held

protected by the autonomy branch.

Plaintiffs sought to prove at trial that the

disclosure required by LL 48 would serve no useful

purpose. Like LL 1 before it, LL 48 contains no

declaration of policy. But, as the Appellate Division

said in Hunter v. City of New York, supra, 58 A.D.2d

at 137, 396 N.Y.S.2d at 187, “the object of this or-

dinance is clear: to discourage and detect corruption

and the appearance of corruption, avoid conflicts of in-

terest and instill in the public a sense of confidence in

the integrity and impartiality of its public servants.”’

69a

Plaintiffs sought to negate these as valid purposes by

proving that no corruption has been shown to have oc-

curred in living or recorded memory within the ranks

of Fire Department plaintiffs and among Police

Surgeons; furthermore, opportunities for corruption

among these groups of plaintiffs are limited.'’ Some

government witnesses asserted that opportunities ex-

isted for Deputy and Battalion Chiefs to engage in

corruption or to have conflicts of interests, see, e.g.,

T.D. 20-31, 45, particularly with respect to their

supervision of inspections. Plaintiffs discredited much

of‘ .. testimony, T.D. 50-56, 58, and presented credi-

ble vestimony to the contrary, see T. 39-46, 54. Given

Fire Inspector General Kotch’s agreement that

“‘It}here is... no proof whatsoever of a single instance

of active corruption or conflict of interest activity by a

Chief Officer,’’ T.D. 152, plaintiffs’ evidence is far

more credible. Corruption in the ranks of Police Cap-

tains and Lieutenants has often been demonstrated,

and opportunities for corruption exist among these

groups.'* Plaintiffs proved, though, that corruption

among such police officers is much less frequent than

in the lower ranks; that procedures already in place in

the Departments serve the deterrent and detection

purposes of the law; and that internal procedures are

more effective than employee disclosure, because they

do not depend upon employee compliance and forms

that may well be little used by investigators, see T.

589.

Investigators charged with policing the integrity

of employees in both the Fire and Police Departments

credibly testified, however, that governmental access

to the information secured by LL 48 would be of some

help to them iu discharging their duties, and would

serve to deter conflicts of interest. T.586, 632; T.D. 44,

70a

99, 184-91. Corruption and more subtle conflicts of in-

terest are possible in each group of plaintiff

employees. That no corruption has been proved

among several groups of plaintiffs does not establish

that improprieties have never occurred, or would

never be deterred or uncovered by the filings. Inspec-

tor General Kotch expressed the view that ample op-

portunities for corruption exist among Batallion and

Deputy Chiefs. T.D. 20-29. John Guido, Chief of the

Inspectional Services Bureau of the Police Depart-

ment, described how the City’s Narcotics Division

was long regarded as the best squad of detectives un-

til the Knapp Investigation put some 60 of its 80

members behind bars. T. 576-77. The City is not re-

quired to rely, moreover, on departmental

mechanisms to achieve its aims; it is entitled to opt for

a centralized system of monitoring its employees’

finances, even if the new procedure is less comprehen-

sive than some departmental procedures. The extent

to which the new system will be used, or will prove

useful, is speculative. Yet, the fact that dishonest

filers may lie on the forms seems likely to prove a

useful aspect of the system. Experience has shown

that prosecuting individuals for false statements in re-

quired filings is often more efficient and successful

than prosecuting them for the misconduct or im-

prioriety they sought to hide; and in prosecutions for

the underlying conduct, proof that the subject lied or

withheld information is often potent evidence,

especially as to the individual's intent.

If the centralized disclosure procedure mandated

by LL 48 serves valid governmental objectives, then

requiring information about spousal finances is

necessary to make it effective. As the First Circuit

stated in O'Brien v. DiGrazia, 544 F.2d 543, 546 (1st

Tla

Cir. 1976), ‘‘{iJnformation about other members of the

officer’s household must also be revealed if the ques-

tionnaire is to have meaning.’’ See T. 361, 376-79. Vir-

tually every financial disclosure law enacted to date

has required some disclosure of family finances. See

supra, note 1. ‘‘[A]s a basic proposition, resources of a

husband and wife are usually held in common, and the

financial interests of a spouse are generally shared by

the partner. A bookkeeping arrangement wherein one

spouse holds sole title to a particular financial asset

does not mean that the partner does not share an in-

terest in the financial holding....’’ House Select

Comm. on Ethics, Legislative Branch Disclosure Act

of 1977, H.R. Rep. No. 574, 95th Cong., 1st Sess. 23

(1977). ‘Failure to require disclosure of the financial

holdings of a spouse ... would render [LL 48] mean-

ingless,’’ because a filer ‘‘who wished to evade the

financial reporting requirements of the law could easi-

ly funnel money and property to his or her

spouse....’’ Jd. at 24 (citation omitted). These con-

siderations justify the City Council’s inclusion of

spousal finances in the filing requirements of LL 48,

despite the desire of some spouses to keep their

finances secret from the filing employee.'* Moreover,

the required disclosure of spousal information to the

filing spouse serves yet another purpose that seems

compelling. It effectively requires the filing spouse to

make himself or herself familiar with the nonfiling

spouse’s interests, and thereby become responsible

for avoiding conduct that could improperly favor the

nonfiling spouse’s interests.

B. Disclosure to the Public

[13] The aspect of LL 48 that permits public ac-

cess to all financial information filed by employees

72a

must be evaluated separately from the law’s require

ment that the forms be filed with the City. Public ac-

cess to the information that must be filed under LL 48

would have a very substantial impact on the confiden-

tiality aspect of privacy, as well as significant indirect

effects upon recognized autonomy interests. Further-

more, the government has no need for such burden-

some disclosure. Any legitimate need for public ac-

cess—including press access—is served here by apply-

ing the statute to employees who are elected or hold

policymaking positions. The plaintiff classes are,

without exception, categories of civil servants ap-

pointed and promoted on the basis of competitive

tests, who have no important policymaking authority.

The public disclosure provision thus deprives plain-

tiffs of important rights while furthering no substan-

tial interest.

1. Impact on privacy of public disclosure

The degree of intrusion stemming from public ex-

posure of the details of a person’s life is exponentially

greater than disclosure to government officials. See

Nixon v. Administrator of General Services, supra,

433 U.S. at 458, 97 S.Ct. at 2797; Whalen v. Roe,

supra, 429 U.S. at 600-02, 97 S.Ct. at 877; Planned

Parenthood v. Danforth, 428 U.S. 52, 80-81, 96 S.Ct.

2831, 2846, 49 L.Ed.2d 788 (1976); O’Brien v.

DiGrazia, supra, 544 F.2d at 546. Disclosure to the

government necessarily results in fewer persons learn-

ing of the facts disclosed than does public disclosure,

which potentially reaches everyone. Disclosure to the

government serves identifiable needs that limit both

the persons to whom disclosure is made and the pur-

poses for which they may use the information disclos-

ed. By contrast, even if public disclosure is seen to

73a

serve identifiable needs, those needs do not limit the

persons to whom, or the purposes for which,

disclosure is made. Any person may obtain and use

publicly disclosed information, and for any purpose,

however improper. Government officials generally

lack familiarity with a particular employee's privacy

concerns, and are constrained in using private infor-

mation by legal, ethical, and practical considerations,

including the need to avoid harming employee morale.

Public disclosure will provide access to individuals

particularly interested in the filer’s privacy concerns,

as well as to the press and other commercial interests

bent on exploiting the information and relatively un-

constrained in doing so. The mere fact that private in-

formation is available on demand to individuals who

know what is sensitive and how to exploit it adds

greatly to the inhibition, anxiety, and embarrassment

that the same disclosure might cause if restricted to

the government. T. 104-111, 243.

Plaintiffs presented several examples of how

public disclosure would adversely affect autonomy in-

terests, particularly the recognized interest in con-

trolling one’s family life. An individual (or his spouse)

wanting to project an image of modest financial

means could be exposed as having substantial wealth.

Other filers would be unable to avoid exposing their

relative impecunity. Exposure of ‘‘the truth’’ could

prevent filers and their spouses from choosing life

styles that they believe to be beneficial to themselves

or to their children. T. 238-41. Given the broad scope

of disclosure ordered by LL 48, moreover, public fil-

ings will reveal in some instances facts that could

damage a variety of associations and relationships,

ranging from family relationships to friendships and

participation in fraternal and religious activities. See,

74a

e.g., T. 239-45, 272-82. Nor is it possible to know in ad-

vance the many effects of public disclosure upon the

filer’s autonomy interests. For example, while the re-

quirement that a filer reveal the address of certain real

property he or she owns primarily affects a confiden-

tiality interest, filers will have to avoid owning homes

if they wish to avoid revealing their residence or sum-

mer addresses.

Public disclosure will directly and materially af-

fect the confidentiality interests of filers and their

spouses. Among those likely to use the forms are in-

surance salesmen seeking customers, T. 423, family

members or neighbors seeking knowledge of the filer’s

financial capacity for a variety of purposes, T. 272-77,

former spouses seeking to determine ability to pay

alimony, T. 427, business organizations seeking in-

vestors or customers, public interest or other

charitable organizations seeking contributions, and

commercial interests seeking to expand mailing lists,

T. 143, As noted above, public disclosure may lead to

embarrassment that one lives above or below one’s

means, and will reveal many associations. The impact

will be felt with respect to the disclosure of virtually

every class of financial information specified on LL

48—sources of outside income, e.g., T. 295, 345, gifts

and reimbursements, e.g., T. 325, amount and address

of real property, e.g., T. 551; T.D. 178-79, identity of

creditors and amount of debt.

Filers will also lose the power to minimize specific

and reasonable fears for their own safety, their

family’s safety, and the security of their property. T.

327-28, 632; T.D. 178-79. Police officers are particular-

ly concerned that their home addresses must be

revealed, if they own homes, thereby exposing

75a

themselves and their families to possible attack by

criminals whom they investigate, apprehend, or

testify against. T. 327-28, 434-35, 456, 532. A govern-

ment investigator called by the defense to support the

need for LL 48 confirmed that policemen commonly

take extreme measures to keep their addresses

private; he said that he, too, would be reluctant to

make his address available to individuals whom he

had helped send to prison. T.D. 178-79. The law also

directs the City Clerk to retain the forms until two

years after the employee leaves public service; public

exposure is thereby potentially extended over

decades, increasing the risk of intrusions and the

resulting anxiety. T. 243.

The press seems most likely to examine

disclosures, and to use the information in newspapers,

television, and radio stories. See T. 490 (experience in

Alabama indicates press is a principal user of disclos-

ed information). Uncontroverted testimony indicated

that on several occasions the New York press used

financial information about police and fire officers in

humorous or ridiculing articles about the officers or

their spouses, occasionally with painful consequences

to the individuals concerned. T. 84, 139-40, 244, 305,

426, 428-31, 489, 528-29, 534; T.D. 203-04 (testimony

of Inspector Kotch). Press exposure of private facts is

perhaps the single most persistent danger to the

privacy of Americans. The right to privacy has from

its inception reflected a desire to protect sensitive,

personal information from an intrusive and sensa-

tionalist press. See Warren & Brandeis, The Right to

Privacy, 4 Harv.L.Rev. 193 (1890); Note, The Right to

Privacy in Nineteenth Century America, 94

Harv.L.Rev. 1892 (1981). Our nation’s free and

vigorous press, however, will not and must not be

76a

restrained in the lawful pursuit of even the most

tasteless aims. Consequently, any protection to be af-

forded civil servants from press exposure having no

legitimate public purpose must take the form of pro-

tecting private material from required public

disclosure. Cf. New York Times Co. v. United States,

403 U.S. 713, 728-30, 91 S.Ct. 2140, 2148, 29 L.Ed.2d

822 (1971) (Stewart, J., concurring) (national security

best preserved by avoiding disclosures, not by impos-

ing restraints on press).

Defendants argue that the privacy interests af-

fected by LL 48 are adequately protected by the

statute’s mechanism for permitting individuals to ap-

ply for protection of private information. That

mechanism, however, will not prevent, and in some

ways will exacerbate, invasions of legitimate expecta-

tions of privacy.

LL 48 requires that all information specified on

the form be supplied in full, regardless of whether the

individual filing considers the information to be

private. The filer must flag each item he considers to

be private, and must provide to the City a full ex-

planation, in writing, of why ‘‘the item is of a highly

personal nature.’’ His privacy claims will not be ad-

judicated, moreover, until « request for public inspec-

tion is made of the City Clerk; the claims may

therefore have to be repeated each year, for years,

before they are actually adjudicated. When the

privacy claim is adjudicated, the ordinance provides

three factors for the Board of Ethics to consider: ‘‘(a)

whether the item is of a highly personal nature; (b)

whether the item in any way relates to the duties of

the positions held by such person; (c) whether the item

involves an actual or potential conflict of interest.’’

77a

The Board is to make its determination in writing, and

to forward it to the City Clerk, who is then to make

available all information but that which the Board has

excepted.

The standards provided to the Board of Ethics af-

ford no assurance that requests by filers to keep infor-

mation private will be granted, even when no need ex-

ists for public disclosure. The evidence demonstrates

that plaintiffs harbor expectations of privacy for a

variety of reasons that may be strongly felt but are

unlikely to be deemed “highly personal.’ A father’s

wish to bring up his children without letting them

know he is relatively wealthy, for example, or a filer’s

desire to avoid being solicited by salesmen, may not

be deemed ‘‘highly personal."’ If so, disclosure follows

automatically even though the information involved,

such as the precise amount of a person's assets or his

home address, has nothing to do with the filer’s duties

and poses no threat of conflict of interest.

Whatever value the statutory mechanism may

have is negated by the indefinite delay that occurs

before a claim of privacy is resolved. The Board of

Ethics rules upon such claims only after a member of

the public seeks to inspect the filing of the employee

seeking protection against public disclosure. The filer

therefore will not know whether details about himself

or his spouse will be protected or exposed to the public

until a request for inspection is made, and the Board

of Ethics rules. During that period of uncertainty, the

filer and his spouse must live with the continuing

possibility of public disclosure. As Dr. Levin testified:

If a person fills out this form, immediately there is a

fear that there may be disclosure at some future time,

78a

some unknown time, [by] some unknown person, and

one begins to limit the choices, the behavioral choices.

One might change the way they reared their children,

perhaps someone believes that children should not

know that one is wealthy and want them to develop

self-reliance, and then that freedom would be limited.

It could be the other way: someone could have had a

very difficult life, worked very hard, his parents were

very poor and he wanted his children not to know that

they really had very little money and not to have that

stress. You would no longer have that freedom

because you certainly want to appear trustworthy to

your children. So that the kind of choices you would

make would be limited.

T. 242-43; see T. 173-75 (testimony of Dr. Westin). The

statutory mechanism does nothing to allay the anxie-

ty caused by loss of control over, and indeed loss of

knowledge about, what information will eventually be

communicated to the public. T. 104 (testimony of Dr.

Westin); T. 243 (testimony of Dr. Levin). In Dr.

Westin’s words, the mechanism would have plaintiffs

“wondering day by day whether somebody will ask for

this and not knowing in advance whether the Ethics

Board will accept or reject their [privacy] claim until

the moment at which they are placed in jeopardy.” T.

175.

Furthermore, the requirement that employees

detail in writing their privacy claims will in many

cases condition the opportunity to avoid one invasion

of privacy on accepting a second, even more intrusive

invasion. The reasons financial information may be

private or personally embarrassing will almost always

be more personal and private than the information

itself. See T. 175. ‘‘Moreover, all privacy claims must

be decided in writing, and a person losing a privacy

79a

claim will be forced to litigate or (unless regulations

are adeopted providing otherwise) suffer the revela-

tion of both the information and the fact that the

privacy claim was rejected.’’ Slevin v. City of New

York, 477 F.Supp. 1051, 1058 (S.D.N.Y. 1979).

Finally, the privacy mechanism of LL 48 has the

effect of placing in special jeopardy persons who suc-

ceed in obtaining protection from disclosure of par-

ticular items:

Since their reports will be publicly available except for

material deemed protected, the public will be placed

on notice that [a specific] aspect of the financial lives

of these individuals is ‘‘highly personal.’’ That the

aspect of their lives that is withheld will have been

found to have no relationship to their duties, or to

raise no actual or potential conflict of interest, seems

unlikely to guaranty that no effort will be made by

members of the public to discover the underlying

facts. Indeed, some investigators may be more in-

terested in uncovering non-job related ‘‘highly per-

sonal"’ facts than in examining less intensely personal

information, however job related.

Slevin v. City of New York, 477 F.Supp. at 1058. The

‘privacy mechanism’’ will therefore have the effect of

flagging ‘‘highly personal” aspects of a peson’s life to

the public, thereby inviting focused intrusions by the

press. The threat of public disclosure of the specific

areas of an individual’s life that involve highly per-

sonal matters seems an especially grave invasion of

privacy, and further limits the utility and significance

of the privacy mechanism.

80a

2. Need for public disclosure under LL 48

Public exposure of the financial affairs of public

officials, candidates for elective offices, and govern-

ment employees may serve important legislative

goals. Our national, state, and local governments rely

upon voter participation concerning numerous sub-

jects. The public acts as a legislature in some cir-

cumstances, voting in referenda on various issues. In

these instances, legislatures are justified in man-

dating public disclosure of all the information a

legislature would need to know. The public also votes

to elect persons to executive, legislative, judicial, and

administrative offices, at all levels of government. A

legislature acts reasonably in mandating public

disclosure of information necessary or even arguably

helpful to the elective process, including information

about the individuals seeking office. The essence of

elective office ‘‘consists in putting before the voters

every conceivable aspect of [one’s] public and private

life... .’’ Monitor Patriot Co. v. Roy, 401 U.S. 265,

274, 91 S.Ct. 621, 626, 28 L.Ed.2d 35 (1971). Public

disclosure under LL 48 expressly applies to the

Mayor, members of the City Council, the Comptroller,

the Borough Presidents, and candidates for those of-

fices. But the financial information sought from the

plaintiff classes is neither necessary nor relevant to

any identified, public legislative function, and no

member of the plaintiff classes is an elected official.

The public’s need to know extends beyond the

vast disclosures justifiable by the public’s law-making

and voting functions. The City argues that public con-

fidence in the integrity of fire and police officers could

be increased by public disclosure pursuant to LL 48,

because the public (including the press) could thereby

8la

monitor and investigate corruption and conflicts of in-

terest, and because of the belief that disclosure will

deter the officers covered by LL 48 from corrupt or

unethical acts. The City contends, more broadly, that

public disclosure is justified as to employees who earn

more than $30,000, because the public has a special in-

terest in its own employees, particularly those with

relatively high salaries. ‘‘Salary is directly related to

the importance of the functions of the employee and of

the degree of reliance which is placed upon the integri-

ty of their discharge, even though there are other

parameters. Thus a measure of the danger posed by

the opportunity to exercise a conflicting interest is

furnished by the salary of the position.’’ Defendants’

Post Trial Memorandum at 8. Finally, and most

broadly, the City claims that public disclosure under

LL 48 increases the public’s knowledge of matters

relevant to government, and is therefore supported by

the public’s “right to know”’ of matters that make for

an informed citizenry. None of these grounds provides

substantial justification for public disclosure of the

financial facts of plaintiffs’ lives.

a. Need to control corruption and conflicts of in-

terests.

The suggestion that the public will investigate

corruption or conflicts of interest among civil ser-

vants such as plaintiffs has no evidentiary basis; while

the press frequently focuses on the activities and

ethics of elected and policymaking officials, the task

of investigating civil servants is generally one

delegated to and carried on by government personnel.

The relevant question, with respect to the possibility

of increased exposure of improprieties or increased

deterrence, is not whether public disclosure will ex-

82a

pose or deter conflicts of interest, but whether it will

expose or deter significantly more effectively than

disclosure to the government. Furthermore, that

judgment must be made in the proven context of a Ci-

ty whose employees are separately governed by an ar-

ray of laws and procedures designed to prevent and

deter corruption and conflicts. See Slevin Plaintiffs’

Memorandum of Law at 23-24 (statutes collected).

The City made no attempt at trial to establish

that public disclosure of the information secured from

plaintiffs by LL 48 would enhance to any extent the

investigation or deterrence of corruption or conflicts.

Indeed, the City’s principal witnesses explicitly

disclaimed any such result. Inspector Guido, the of-

ficer in charge of investigating Police Department cor-

ruption and conflicts of interest, frankly conceded

that the interests in detection, deterrence, and preven-

tion of corruption or conflicts of interest will be fully

served by disclosure of the information to his depart-

ment. T. 627-28. Fire Inspector General Kotch

testified to the same effect:

Speaking as an investigator, I would ... say it

wouldn’t impede me if [the information] was just

available to investigative agencies and not to the

public; although [I am] aware ... that the Mayor or

the City Council may think that the public has a right

to such access, fortunately I am not a politician and I

don’t really have a pulse on what the public wants, nor

do I care what the public wants.

T.D. 102; see T.D. 184. Defendants took pains, in

fact, to establish the efficiency and adequacy of the Ci-

ty’s investigative apparatus. T. 555-59; Defendants’

Post-Trial Memorandum at 13.

83a

These concessions cannot be disregarded. They

strongly buttress plaintiffs’ claim that public

disclosure of virtually every aspect of plaintiffs’

finances could not conceivably lead to public scrutiny

that affects public confidence in government. While

certain limited types of information could in connec-

tion with some members of the plaintiff classes lead

sporadically to investigations and revelations that

serve come public end, the statute goes far beyond re-

quiring disclosure of information bearing upon the

workings of government. Rather, LL 48 adopts the

technique of systematically, and indiscriminately,

ordering disclosure of all the financial facts about

every person covered.

b. Need for disclosure by higher-paid employees.

The City seems primarily to rest its case for public

disclosure of plaintiffs’ finances on the notion that the

public has a special interest in knowing about those

public employees in jobs entailing a high degree of

trust, ard that the sdlary level of $30,000 is a fair

‘measure of the danger posed by the opportunity to

exercise a conflicting interest.... The legislative

judgment has been that the threat is significant

enough to warrant disclosure at the $30,000 level.”’

Defendants’ Post Trial Memorandum at 8.

The notion that the public has a special interest in

knowing about public employees who hold positions

with a high degree of trust is in principle valid. A

tangible and substantial public need to know exists

with respect to government employees exercising

policymaking functions, not merely for the purpose of

uncovering conflicts of interest, but also for the pur-

pose of enabling the public to evaluate the motives

84a

and biases that such individuals may possess.

Leading administrators in the City’s agencies, for ex-

ample, are called upon to recommend or decide upon

actions or great public importance, which decisions

might arguably be affected by their financial position

or interests. The public, therefore, could conceivably

learn relevant facts about the job performance of such

individuals by knowing about their finances generally.

Some limits may be proper on the public disclosure of

facts related to such individuals. But the broad,

discretionary powers of policymaking officials make

them potentially proper subjects of the complete

financial disclosures sought by the City in LL 48.

This basis for public disclosure by policymaking

officials does not, however, extend to public

employees in general. Individuals and their families

may not fairly be subjected, by virtue of public

employment alone, to greater public scrutiny than

other citizens. Americans do not lose their right to

privacy by accepting public employment. Of course, a

particular public employment may provide a

legitimate nexus tending to justify public disclosure

of otherwise private information. But a need for

disclosure must be advanced, not merely the fact of

public employment. See Plante v. Gonzalez, supra, 575

F.2d at 1134 & n. 25. Compare City of Carmel-by-the-

Sea v. Young, supra, 85 Cal.Rptr. at 7, 466 P.2d at 232

(indiscriminate application of public disclosure law to

all public employees unconstitutional) with County of

Nevada v. MacMillen, 11 Cal.3d 662, 114 Cal.Rptr.

345, 522 P.2d 1345, 1350 (1974) (application of public

disclosure law to high officials constitutional). Cf.

Elrod v. Burns, 427 U.S. 347, 367-68, 96 S.Ct. 2673,

2686, 49 L.Ed.2d 547 (1976) (plurality opinion) (con-

stitution permits patronage dismissals of policymak-

85a

ing public employees but not of public employees in

general).

The evidence demonstrates that policymaking in

both the Fire and Police Departments is in the hands

of the Mayor’s appointees, and their hand-picked pro-

fessionals in the highest departmental ranks. See

supra, notes 11 & 12. The officer classes covered by

LL 48 are engaged in implementing policy established

by others. The Fire Department plaintiffs perform

their duties literally in accordance with ‘the

book’’—i.e., manuals and instructions that are issued

by headquarters to govern their conduct in virtually

all contingencies. T. 26-30; Slevin Plaintiffs’ Proposed

Findings of Fact (No. 11) at 5. While the police officers

covered by LL 48 have considerable discretion in con-

nection with their tasks, the discretion they exercise

involves no general policy implications. T. 614-19.

Their discretionary functions potentially subject

some of them to the temptations of graft and corrup-

tion, but theirs are not the sorts of policymaking ac-

tivities that make all the fiscal facts of their lives a

proper subject of general public scrutiny.

The City seemed initially to argue that at least

some members of the plaintiff classes have managerial

positions, routinely making policy. See Affidavit of

Deborah Rothman, Esq., Sept.

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