NYSUT FOIL REQUEST FOR CHARTER SCHOOL TEACHERS FOILED

In an interesting turn of events NYSUT made a FOIL request for teachers names and other information in Charter Schools and argued the privacy exemptions of FOIL do not apply. The decision in that case follows:

In the Matter of NEW YORK STATE UNITED TEACHERS, Respondent, v BRIGHTER CHOICE CHARTER SCHOOL et al., Appellants.

506538

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

2009 NY Slip Op 6071; 64 A.D.3d 1130; 883 N.Y.S.2d 383; 2009 N.Y. App. Div. LEXIS 5906

July 30, 2009, Decided
July 30, 2009, Entered

NOTICE:

THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION.

THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.

SUBSEQUENT HISTORY: Motion for leave to appeal granted by Matter of N. Y. State United Teachers v. Brighter Choice Charter School, 13 N.Y.3d 712, 2009 N.Y. LEXIS 4098, 891 N.Y.S.2d 304 (N.Y., Nov. 23, 2009)

CASE SUMMARY

PROCEDURAL POSTURE: Respondent charter schools appealed a judgment by the Albany County Supreme Court (New York) that granted petitioner union's CPLR art. 78 application to review the schools' denial its requests under the Freedom of Information Law (FOIL), Public Officers Law art. 6.

OVERVIEW: The union initially sought the names, home addresses, titles, and salaries of the schools' teachers, instructors, and faculty (collectively the teachers). A dispute arose regarding the extent of the requested information that should be supplied under FOIL, as well as the applicability of the personal privacy exception for information sought for a commercial or fund-raising purpose. The question left to be answered at trial was whether the schools had to provide the full names of their teachers. The trial court concluded that the full names had be provided under FOIL. The appellate court found, inter alia, that the personal privacy exception upon which the schools relied, as it existed at the pertinent time, did not support their argument that the teachers' full names need not be provided. Education Law § 2854(1)(e) provided that the schools were subject to the provisions of FOIL. Public Officers Law § 87(3)(b) required the charter schools to maintain, inter alia, records of the names of their employees. Accordingly, the trial court properly granted the union's CPLR art. 78 application.

OUTCOME: The judgment was affirmed.

CORE TERMS: teachers', personal privacy, full names, salary, Freedom of Information Law, charter schools, statutory exemptions, public school teachers, fund-raising, disclosure, dropped

LexisNexis® Headnotes Hide Headnotes

Administrative Law > Governmental Information > Freedom of Information > Enforcement > Standards of Review

HN1

The Freedom of Information Law (FOIL), Public Officers Law art. 6, is premised on the strong policy conviction that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government. Accordingly, FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government.

Administrative Law > Governmental Information > Freedom of Information > Enforcement > Burdens of Proof

HN2	In a Freedom of Information context, an agency seeking to assert statutory exemptions must demonstrate that the material requested falls squarely within the ambit of the statutory exemptions.

Administrative Law > Governmental Information > Personal Information > Agency Requirements > Information Collection
Education Law > Administration & Operation > Charter Schools

HN3

Charter schools are subject to the provisions of the Freedom of Information Law (FOIL), Public Officers Law art. 6. Education Law § 2854(1)(e). It follows that, for the limited purpose of FOIL, the schools are tantamount to an "agency," Public Officers Law § 86(3), and their employees stand on similar ground as public employees. As such, the schools are required to maintain records of the name, public office address, title, and salary of their employees. Public Officers Law § 87(3)(b).

Administrative Law > Governmental Information > Personal Information > Agency Requirements > Information Collection

HN4	Disclosing a person's home address implicates a heightened privacy concern. Public Officers Law § 89(7).

COUNSEL: Bond, Schoeneck & King, P.L.L.C., Albany (Joanmarie M. Dowling of counsel), for appellants.

Law Office of James R. Sandner, Latham (Marilyn Raskin-Ortiz of counsel), for respondent.

JUDGES: Before: Peters, J.P., Spain, Lahtinen, Kavanagh and McCarthy, JJ. Peters, J.P., Spain, Kavanagh and McCarthy, JJ., concur.

OPINION BY: Lahtinen

OPINION

 [***384]   [**1130]  MEMORANDUM AND ORDER
Lahtinen, J.
Appeal from a judgment of the Supreme Court (McDonough, J.), entered December 5, 2008 in Albany County, which granted petitioner's application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to review six determinations of respondents denying petitioner's Freedom of Information Law requests.
Petitioner, a labor union, made requests in December 2007 under the Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]) to respondents, six charter schools in Albany County and the boards of education and certain administrators thereof, for the names, home addresses, titles and salaries of respondents' teachers, instructors and faculty (hereinafter collectively referred to as teachers). A dispute arose regarding the extent of the requested information that should be supplied under FOIL, as well as the applicability of the personal privacy exception for information sought for a commercial or fund-raising purpose (see  [*2]  Public Officers Law § 89 [2] [b]  [**1131]  [former (iii)]) ¹. In June 2008, petitioner commenced these proceedings, which were consolidated by stipulation. By the time of oral argument, petitioner had dropped its request for home addresses and respondents had acknowledged they would provide the titles and salaries of their teachers. The question left to be answered is whether respondents also had to provide the full names of their teachers. Supreme Court concluded that the full names must be provided under FOIL. Respondents appeal.

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1 The parties do not contend that the recent amendments to FOIL (see L 2008, ch 223, § 4 [eff Aug. 6, 2008]) should be applied in this proceeding, where the requests were made and the proceeding was commenced before the amendments became effective. We make no ruling regarding the amended statutory language.

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^HN1FOIL is premised on "the strong policy conviction that 'the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government'" (Matter of Federation of N.Y. State Rifle & Pistol Clubs v New York City Police Dept., 73 NY2d 92, 95, 535 N.E.2d 279, 538 N.Y.S.2d 226 [1989], quoting Matter of Fink v Lefkowitz, 47 NY2d 567, 571, 393 N.E.2d 463, 419 N.Y.S.2d 467 [1979]). Accordingly, "FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government" (Matter of Capital Newspapers, Div. of Hearst Corp. v Whalen, 69 NY2d 246, 252, 505 N.E.2d 932, 513 N.Y.S.2d 367 [1987]; see Matter of Data Tree, LLC v Romaine, 9 NY3d 454, 462, 880 N.E.2d 10, 849 N.Y.S.2d 489 [2007]). ^HN2An agency seeking to assert statutory exemptions must "demonstrate that 'the material requested falls squarely within the ambit of these statutory exemptions'" (Matter of Newsday, Inc. v Empire State Dev. Corp., 98 NY2d 359, 362, 774 N.E.2d 1187, 746 N.Y.S.2d 855 [2002], quoting Matter of Fink v Lefkowitz, 47 NY2d at 571).
The Legislature has specifically provided that ^HN3charter schools are subject to the provisions of FOIL (see Education Law § 2854 [1] [e]). It follows that, for the limited purpose of FOIL, respondents are tantamount to an "agency" (Public Officers Law § 86 [3]) and their employees stand on similar ground as public employees. As such, respondents are required to maintain records of "the name, public office address, title and salary" of their employees (Public Officers Law § 87 [3] [b]). Respondents have provided no cases where this basic information about employees who are subject to FOIL has been found to be exempt from disclosure. Indeed, this basic information as to state employees, as well as public school teachers in this state, is accessible by anyone for any purpose on the  [***385]  Internet. While respondents argue that there are sound reasons for not requiring the same level of transparency for respondents' teachers as  [**1132]  public school teachers, the Legislature has made no such distinction.
The personal privacy exception upon which respondents rely, as it existed at the pertinent time, does not support their argument that the teachers' full names need not be provided. Such exception provided, in relevant part, that it was an unwarranted invasion of personal privacy to seek "lists of names and addresses if such lists would be used for commercial or fund-raising purposes" (Public Officers Law § 89 [2] [b] [former (iii)]). This language has been interpreted to include information sought under FOIL to be used in direct-mail membership solicitation, which in turn results in receipt of funds or dues (see e.g. Matter of Federation of N.Y. State Rifle & Pistol Clubs v New York City Police Dept., 73 NY2d at 96-97; Matter of New York State Rifle & Pistol Assn., Inc. v Kelly, 55 AD3d 222, 226, 863 N.Y.S.2d 439 [2008]). While respondents produced proof from which petitioner's intent to solicit members could be inferred,  [*3]  there are two important distinctions in this proceeding that keep it from falling within the holdings of cases finding the personal privacy exception applicable. First, the cases upon which respondents rely sought disclosure of names and, significantly, also home addresses. ^HN4Disclosing a person's home address implicates a heightened privacy concern (see generally Public Officers Law § 89 [7]; United States Dept. of Defense v Federal Labor Relations Auth., 510 U.S. 487, 114 S. Ct. 1006, 127 L. Ed. 2d 325 [1994]; Matter of Empire Realty Corp. v New York State Div. of Lottery, 230 AD2d 270, 272-273, 657 N.Y.S.2d 504 [1997]). Here, petitioner has dropped its initial request for the teachers' home addresses. Second, unlike the precedent cited by respondents, this case involves a request for -- as discussed above -- basic information required to be kept (see Public Officers Law § 87 [3] [b]) about employees whose status subjects them to FOIL on essentially the same footing as public employees (see Education Law § 2854 [1] [e]).
Peters, J.P., Spain, Kavanagh and McCarthy, JJ., concur.
ORDERED that the judgment is affirmed, without costs.