The Committee on Public Utility Law of the New York State Bar Association posed the following as the second of three questions:
"Should the submission of information, or comments on a proposed statute or regulation, in response to a request by the Legislature, the Governor, or a state administrative agency be considered 'lobbying' or 'lobbying activity' under Section 3(b) of the Act?"
The Committee believes the submission of such information should not be considered lobbying, citing the need for such information by the Legislature, Governor, and administrative agencies and the authority to require submission of same in some instances. The Committee claims that where there is no obligation to respond, the potential informant would be unwilling to do so if it were considered lobbying and would limit information where a response was required. Even if the response would be in the interest of the respondent, the Committee would exclude same.
The Committee further cites the need of government to properly evaluate "the myriad pressures to which they are regularly subjected" (U.S. vs. Harriss, 347 U.S. 612 at 625) as being satisfied by the fact that the initiation of the request comes from government. Finally, the Committee claims that the draftsmen of the State Lobbying Act, in proposing amendments to the Act, recognized that responding to information requests should not be considered lobbying.
The issues appear to be four-fold: Must the supplying of the information benefit the respondent to constitute lobbying? Is the act of responding lobbying if mandated? Is the act of responding lobbying if voluntary? If the information supplied goes beyond the immediate limits of the request, does that constitute lobbying?
Clearly public policy dictates that governmental bodies have available all information necessary upon which to base informed decision-making. Therefore, every effort should be made to encourage, and not to inhibit, the free flow of information.
However, the need by government for information cannot be used as a veil behind which the informant hides lobbying activities. The opportunity that an informational request might offer a lobbyist to press his client's views on legislation, rules, or regulations cannot be ignored such that the benefit accruing to the client and the nature of the supplying of the information should be examined. If the informant otherwise lobbies on the subject matter of the request and supplies information in a manner designed to influence decision-making in favor of his client, by volunteering additional information and/or presenting same in a persuasive manner, this could constitute lobbying under the Act. Further, urging a governmental official to request information from the lobbyist could constitute lobbying.
The draftsmen of the Act in proposing a 1978 bill amending the Act did recognize that responding to information requests should not be considered lobbying. This view was reflected in Commission Guidelines issued August 16, 1978. However, the draftsmen added to their proposal: "...where any such person does not otherwise engage in lobbying activities in connection therewith..." The memorandum to the bill notes that this and several other proposals were "purely technical changes designed to clarify the intent of the Regulation of Lobbying Act...".
The total activity of the informant relative to the supplying of information to a governmental body must be considered in each to determine if lobbying, under the Act, is involved. The act of supplying, voluntarily or otherwise, information to a governmental body, on request, would not, by itself, constitute lobbying, but would fall under the exception of Section 12(a) 1 of the Act.
However, the supplying of information, as above, could constitute lobbying activity under the Act when the supplying of information was of potential benefit to the informant's client and 1.) the informant volunteered more information than was sought in the request, or 2.) the informant presented same in a manner that clearly attempted to influence passage or defeat of legislation, rules, or regulations, or 3.) the informant urged a governmental official to request the information, or 4.) the informant otherwise engaged in lobbying on the subject matter in question.
APPROVED BY COMMISSION: FEBRUARY 8, 1979
CONCURRING: CHAIRMAN S. STANLEY KREUTZER, VICE CHAIRMAN OWEN McGIVERN, MARGARET C. ANDRONACO, and D. CLINTON DOMINICK./S/