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Wednesday, June 06, 2012

The government must honor its promise not to disclose the names of individuals asked to disclose certain information – at least for the present

The government must honor its promise not to disclose the names of individuals asked to disclose certain information – at least for the present
Harbatkin v New York City Dept. of Records & Info. Servs., 2012 NY Slip Op 04277, Court of Appeals

This action arose as the result of the City of New York providing redacted records in response to a Freedom of Information request for records resulting from the New York City Board of Education’s investigation of a large number of teachers and other employees suspected of being present or former members of the Communist Party in the1950's. These investigations included interviews with many individuals who, under the promise of confidentiality, were asked to provide the names of those who had been in the Communist Party with them.*

An historian of the period sought disclosure of unredacted transcripts of these interviews under the Freedom of Information Law (FOIL).

The Court of Appeals held that the historian was “entitled to everything in the transcripts except material that would identify informants who were promised confidentiality.”

The Court explained that “today, more than half a century after the interviews took place, the disclosure of the deleted information would not be an unwarranted invasion of personal privacy” noting that this was not always true as “at the time of the investigations, and for some years thereafter, public knowledge that people were named as present or former Communists would have subjected them to enormous embarrassment, or worse.” In any event, said the court, any such embarrassment would be much diminished today because “the activity of which they were accused took place so long ago, and because the label "Communist" carries far less emotional power than it did in the 1950s.”

Balancing these “diminished claims of privacy” against the claims of history, the court said that “The story of the Anti-Communist Investigations, like any other that is a significant part of our past, should be told as fully and as accurately as possible, and historians are better equipped to do so when they can work from uncensored records.”

There was a limitation on providing such records "unredacted," however. The Court ruled that with respect to the disclosure of the names of the interviewees who were promised that "no one would find out they were being interviewed," that promise was required to be honored.

The Court of Appeals said that it was “unacceptable for the government to break that promise, even after all these years,” commenting that “[p]erhaps there will be a time when the promise made to [such individuals], and to others similarly situated, is so ancient that its enforcement would be pointless, but that time is not yet.”

* NYPPL comments: Education Law §§3021 [adopted in 1949 and sometimes referred to as the Feinberg Law] and 3022, respectively provide for "loyalty oaths" and for the “elimination of subversive persons from the public school system”]. Educators involved in “Subversive activities” were “disqualified” for employment. In 1967 these provisions were ruled unconstitutional by the U.S. Supreme Court [Keyishian v. Board of Regents, 514 U.S. 673] on the grounds that they were [1] unconstitutionally vague and [2] violative of the individual's First Amendment rights of free speech and association. 

As to positions in the Classified Service, the Civil Service Law was amended by adding §105, the so-called “Anti-red Law,” which was challenged in Keyishian by co-plaintiff George E. Starbuck, an employee in the Classified Service.

The Supreme Court held that "Civil Service Law §105, subd.1(c), and Education Law §3022, subd. 2, are invalid insofar as they proscribe mere knowing membership without any showing of specific intent to further the unlawful aims of the Communist Party of the United States or of the State of New York."

The Keyishian decision is posted on the Internet at: http://scholar.google.com/scholar_case?case=15934266528750676067&q=keyishian+v.+board+of+regents&hl=en&as_sdt=2,33&as_vis=1

The Harbatkin decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04277.htm


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