Empire Center Fights for Donor Privacy in New York

The following is a guest post submitted by the Empire Center for Public Policy.

If you’ve made a charitable contribution to a New York-based organization, and you value your constitutionally protected right to privacy, you should be worried … and alarmed.

Donors’ rights to privacy are being overlooked, if not disregarded, in the Empire State through an ongoing First Amendment violation by the New York State Office of the Attorney General (OAG). Tish James, the state’s attorney general and top law enforcement official, has failed to take any action to address this violation.

In 2021, the Supreme Court of the United States (SCOTUS) ruled in AFPF v. Bonta that states could not force charitable organizations to disclose certain federal tax documents, as the collection of those documents represents a threat to donor privacy—and therefore a violation of First Amendment rights. New York was one of three states that collected those documents.

Although New York’s OAG stopped collecting those documents following the SCOTUS decision, it was revealed last summer that the OAG had, apparently, not destroyed the documents it had collected when one of those documents—containing private donor information and bearing the office’s stamp—was published in a Politico article. The attorney general has suggested a never-made-public internal investigation happened, but the findings remain opaque. Was the perp identified or punished? Were any changes made to internal processes? Are there any processes to protect this information? Does OAG follow its own document destruction policy? Does OAG even have a document destruction policy?

We don’t know. That’s why after this flagrant constitutional violation, the Empire Center filed a series of Freedom of Information Law (FOIL) requests for records showing, among other things, OAG’s document retention, storage and destruction policies, as well as any reports of security breaches. That was September 19, 2022. Six months later, the OAG continues to stall, replying with standard form letters requesting more time and vague responses to three of the 13 individual requests.

Having received no meaningful response after months of delay, the Empire Center has taken two distinct actions to hold Attorney General Letitia James and her office accountable.

First, the Empire Center has filed appeals to all outstanding FOIL requests still active with OAG. Nothing in those requests should take six months to gather. It’s likely at this point that the OAG either won’t produce or simply doesn’t have the documents requested. This appeal is the last administrative step needed before the Empire Center can ask a court to intervene and compel OAG to make the information available or admit they don’t have it.

Concurrently, joined by the Institute for Free Speech and represented by our partners at the Government Justice Center, the Empire Center filed a formal demand letter demanding that OAG certify the destruction of any documents it is keeping in violation of the First Amendment as a result of the 2021 SCOTUS decision. The only way we will know if Attorney General James is complying with the laws that she’s charged with upholding is for her office to comply with our demand letter.

The handling of the initial leak and the successive delays reek of a cover-up, or incompetence, or both. We’re committed, at the very least, to get to the bottom of it.

Tim Hoefer is president and CEO of the Empire Center for Public Policy based in Albany, New York. Hoefer’s work focuses on government transparency, reform and accountability. A frequent author on these topics, he has testified before local and state government bodies, written several op-eds, and has appeared on various radio and broadcast programs. Since its launch in July 2008, Hoefer has led the center’s government transparency project, SeeThroughNY.net.

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