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Tuesday, January 26, 2016

Where disclosure is not barred by statute, claims of “unwarranted invasion of personal privacy" are resolved by a court weighing "privacy interests" against the public's interest in the information



Where disclosure is not barred by statute, claims of  “unwarranted invasion of personal privacy" are resolved by a court weighing "privacy interests" against the public's interest in the information
Sell v New York City Dept. of Educ., 2016 NY Slip Op 00425, Appellate Division, First Department

Peter Sell sought the records of an investigation by the New York City Department of Education [DOE] Office of Special Investigations [OSI] into a complaint he filed alleging that school administrators had improperly influenced the re-scoring of a Regents Examination with the intent of improving the number of students who passed "with distinction." DOE denied Sell’s request, citing the statutory exemptions from disclosure of unwarranted invasion of privacy and inter- or intra-agency materials set out in Public Officers Law §87[2][b], [g].

Supreme Court ordered the records in question produced for an in camera* inspection by the court and subsequently directed DOE to disclose the investigative file concerning “Office of Special Investigation Case 08-4247” except for certain pages, with any Social Security numbers redacted from such files. The DOE appealed the court’s ruling.

The Appellate Division unanimously sustained the Supreme Court’s decision after excepting from disclosure certain additional pages or portions of pages it identified in its decision, explaining that the lower court had “properly directed the disclosure of some portions of these records, notwithstanding  OSI's finding the complaint “unsubstantiated."

As DOE had conceded that none of the statutorily enumerated categories of "unwarranted invasion of personal privacy" were relevant in this action, the Appellate Division said it must determine, "by balancing the privacy interests at stake against the public interest in disclosure of the information," whether any invasion of privacy is unwarranted.

The court said that it found that “there is significant public interest in the proper academic assessment of public school students and therefore in the requested materials, which may shed light on the adequacy of OSI's investigation into the allegedly improperly influenced assessment in this case.” Further, the Appellate Division said the DOE had failed to establish that this significant public interest is outweighed by the privacy interests of those involved. 

Contrary to DOE's argument, the court found that there was no indication in the record that any interviewees were promised confidentiality, explicitly or implicitly. Rather, said the court “all contact information other than the interviewees' names and official titles (such as identification numbers, home addresses, phone numbers, and dates of birth) should be redacted,” noting that Sell had specifically clarified in his administrative appeal that he did not seek that information.

As to the statutory exemption for inter- or intra-agency materials, the Appellate Division found the Supreme Court had erred in directing disclosure of certain pages or portions of pages as they were not "factual tabulations or data" or "final agency policy or determinations." Such pages or portions of such pages set out witness statements, email correspondence, and other materials consisting of "opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making" rather than "factual account[s] of the witness's observations."

However, observed the court, a page in which a nonparty FOIL requester, Michael Thomas, discussed certain sensitive matters was not covered by the personal privacy exemption to FOIL because Thomas "consent[ed] in writing to disclosure" by waiving, in an affidavit, any right to confidentiality in any of the records sought. Further, said the Appellate Division, “the remaining records at issue largely relate to [Sell], who expressly waived his right to confidentiality in those records in writing.”

Regarding the remaining materials at issue, the Appellate Division said that Supreme Court had “correctly found that [DOE] failed to meet [its] burden of articulating a ‘particularized and specific justification' for withholding them or redacting them as sought” because there is no blanket exemption for handwritten reports of witness interviews, citing Ingram v Axelrod, 90 AD2d 568.

It should be noted that 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. A FOIL request is required only in the event the custodian of the public record[s] sought declines to provide the information requested.

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.

In addition, the Freedom of Information Law is not a bar an employee organization, certified or recognized for any collective negotiating unit of an employer pursuant to Article 14 of the Civil Service Law obtaining the name or home address of any officer, employee or retiree of a public employer, “if such name or home address is otherwise available."

* A judicial review of material alleged to be confidential or sensitive information to determine whether it should be part of the record to be made public.

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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