A Corporation was requested by an Agency of New York State to write letters to the State Legislature in support of pending legislation of interest to the aforementioned corporation. The corporation inquires as to whether such activity under these facts constitutes lobbying under the present Statute, thereby requiring registration and reporting.
Whether comments given to the State Legislature or governor by an interested party concerning pending legislation, which comment is given at the request of a state agency, constitutes lobbying and therefore requires registration and reporting by that party under the New York State Lobbying Act.
Section 3(c) of the New York State Lobbying Act defines lobbying as "any attempt to influence the passage or defeat of any legislation by either house of the legislature or the approval or disapproval of any legislation by the governor, or the adoption or rejection of any rule or regulation having the force and effect of law or the outcome of any rate making proceeding by a state agency."
Section 3(c)5 provides an exception. "Persons who prepare or submit a response to a request for information or comments by the legislature, the governor, or a state agency or a committee or officer of the legislature or a state agency."
To be considered within the exception activity must satisfy two requirements. First, it must be directed at the party requesting information or comments; and second, it must be limited in scope.
"Information or comment" must be just that. If a response to a request for information or comment is directed at others besides the requesting party, it could be considered lobbying. It would seem clear that any request for information or comment which was responded to by sending such information or comment to members of the State Legislature or the Governor, with a concurrent cost of over $2,000, would clearly be lobbying and subject to registration and reporting no matter to whom it was directed. (See Commission Opinion 78-5.)
To hold otherwise would open a Pandora's Box under the law, where interested parties could spend thousands of dollars to influence legislation under the cloak of the "request for information or comment" exception.
The Opinion of the Commission No. 79-2 makes it clear that "requested" comment is exempted from the definition of lobbying but goes on to state that information that goes beyond comment would not be exempt. This opinion also states that each case should be judged individually on this issue.
One criterion would be the Commission's interpretations of §3(c)(5). A reasonable and proper reading of that Statute would be that the response to a request for comment or information is meant to be made to the legislature, governor or state agency that has made this request in order to be excepted from the definition of lobbying. In this case, however, the request for comment is made by a state agency for a comment to the legislature. This could be interpreted as a "request to lobby" as opposed to a request for information or comment and should be distinguished thusly. The source of the request and the target of the response should be the same to truly fit the exception.
While these are not the only criteria in determining whether an informant was doing more than simply responding to a request for information, they are the core considerations.
It is the opinion of the Commission that a reasonable response by an interested party to a reasonable request from a state agency for information or comment made by a state agency may be excepted from registration and reporting requirements of the Lobbying Act; but, that each case must be judged individually in order to protect against possible abuse of this exception as an attempt to avoid the requirements of registration and reporting.
In this case, the Corporation would not qualify for the exception. While it did not initiate the contact with the New York Agency's office, and its response was not done in addition to other lobbying activity concerning this pending legislation. The source of the request for comment and the target for the response were not the same state agency, and as such, the exception is not available. However, since the corporation has not exceeded the expense threshold, registration is not required.
APPROVED BY COMMISSION: OCTOBER 1, 1999
CONCURRING: BARTLEY F. LIVOLSI, CHAIR; ALBERT S. CALLAN, MILTON MOLLEN, STEWART C. WAGNER, AND JOSEPH A. DUNN./S/