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Thursday, July 11, 2013

A peer-review panel member’s evaluation of an individual may be withheld from disclosure pursuant to a FOIL request

A peer-review panel member’s evaluation of an individual may be withheld from disclosure pursuant to a FOIL request
Shaw v. Lerer, 112 Misc2d 260

Typically a request to obtain a public record[s] pursuant to the Freedom of Information Law is required only in the event the custodian of the public record[s] sought declined to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information.

It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

However, the release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute.

After officiating at interscholastic senior varsity hockey games for two years, Shaw was assigned only junior varsity events.

Rating summary sheets prepared by fellow officials evaluating Shaw were provided to him. Shaw, however, then demanded copies of the individual evaluations prepared by high school coaches pursuant to the Freedom of Information Law (§87, Public Officers Law). The request was denied and the Shaw filed a petition in Supreme Court challenging the custodian of the records decision not to provide the ratings to him.

Supreme Court dismissed Shaw’s petition, holding that the individual ratings of Shaw by the panel members fell within an exception to disclosure under the law as they were “interagency documents” (See POL 87.2g). The court stated that “If the disclosure is more harmful to the public than nondisclosure, the scales of justice must tip towards nondisclosure.”

In a similar case, a teacher was denied information concerning the votes of two other faculty members considering his application for tenure sued in federal court. The court held that there was no showing that the denial of tenure was for constitutionally impermissible reasons (Gray v. Board of Higher Education, City of New York, 92 FRD 82). Here, said the court, “the benefit likely to be gained by disclosure...for which privilege was claimed, was outweighed by the potential effect of ordering disclosure of confidential votes made under a peer review system”, a point noted by the court in Shaw as well.


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