(dissenting). We dissent and would affirm the granting of petitioner’s application to quash the subpoena *492Conclusion in the majority opinion, but by dealing in absolutes and ignoring the reality of the specific situation, it reaches a conclusion that is not in the public interest.
We have here a demand by the Temporary State Commission to Make a Study of the ¡Governmental Operation of the City of New York (State Study Commission, also known as Scott Commission) for the production of records of the Board of Ethics of the City of New York relating to an investigation by the Board into conflict of interest charges concerning the former Administrator of the New York City Housing and Development Administration; The Board of Ethics of the City of New York, created by local law, -with the duty of rendering advisory opinions to city officers and employees interpreting the City Code of Ethics (Administrative Code, § 1106-1.0 et seq.) was a great advance in dealing with ethical problems and conflict of interest questions in municipal government. (See “ Mood of the People ” by S. Stanley Kreutzer [counsel to the Board of Ethics, who helped draft New York City’s Code of Ethics], National Civic Review, Vol. L, No. 5, May 1961, p. 248.)
The Board of Ethics operates under a regime .of confidentiality in order to preserve its “ confessional ” acceptability. Many opinions have been rendered by the Board, and it is under a statutory duty to prevent disclosure of the identity of city employees when it publishes an opinion. It may well be argued that implicit in this requirement is a corollary that preliminary data submitted for the purpose of decision should also be kept confidential..
In this framework we find that the demanding party, the State Study Commission, has already filed its last report, New York Times, Thursday, April 19, 1973, page 62, and it is no longer funded. It was created by a .special act of the New York State Legislature (L. 1971, ch. 413) and is not being renewed. Regardless of whether it can be concluded that the State Study Commission indeed performed any function (interview with Chairman Stuart N. Scott, New York Times, Sunday, April 22, 1973, section 1, p. 22, cols. 4U5), it is now functus officio.
The investigation which led to the .subpoena here involved was initiated by Maurice Nadjari, then the State Study Commission’s general counsel. However, he has left to become a Special Deputy Attorney-General by appointment of Attorney-General Louis J. Lefkowitz, under executive orders of Governor Nelson A. Rockefeller, pursuant to section 63 of the Executive Law, and he superseded the District Attorneys in New York City in matters relating to corruption in the administration of criminal *493justice. (See “ Superseding the District Attorneys in New York City — The Constitutionality and Legality of Executive Order No. 55 ” by Robert M. Pitler, XLI Fordham L. Rev. 517 [March, 1973].)
The situation here is not unlike that considered by the United States Supreme Court with respect to the contention that a newsman has a First Amendment right to refuse to testify when called before a Grand Jury. (Branzburg v. Hayes, 408 U. S. 665 [1972].) As Mr. Justice Powell suggested in his concurring opinion (p. 709), the State authorities are not free to annex the news media as an investigative arm of the government, and a proper balance should be struck between freedom of the press and the obligations of citizens. In the same way here, substituting the Board of Ethics for the news media, a proper balance leads to the conclusion that the .subpoena should be quashed.
In discussing the Bransburg case, an editorial in the Journal of the American Judicature Society (vol. 56, No. 6 [Jan. 1973], p. 225) used the phrase “ Quis Custodiet Custodes? ” (“ Who Will Watch the Watchdog?”). To allow a dead horse to kick its heels, as against preserving inviolate a valid and forward advance in the system of raising ethical standards fpr public employees, has no justification.
Stevens, P. J., and Markewich, J., concur with Capozzoli, J.; Kupeerman, J., dissents in an opinion in which Murphy, J., concurs.
Order and judgment (one paper), Supreme Court, New York County, entered on July 31, 1972, reversed, on the law and in the exercise of discretion, without costs and without disbursements, the application denied and the petitioners-respondents directed to comply with the subpoena duces tecum.