| Matter of New York State United Teachers v Brighter Choice CharterSchool |
| 2009 NY Slip Op 06071 [64 AD3d 1130] |
| July 30, 2009 |
| Appellate Division, Third Department |
| In the Matter of New York State United Teachers, Respondent, vBrighter Choice Charter School et al., Appellants. |
—[*1] Law Office of James R. Sandner, Latham (Marilyn Raskin-Ortiz of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the Supreme Court (McDonough, J.), enteredDecember 5, 2008 in Albany County, which granted petitioner's application, in a combinedproceeding pursuant to CPLR article 78 and action for declaratory judgment, to review sixdeterminations of respondents denying petitioner's Freedom of Information Law requests.
Petitioner, a labor union, made requests in December 2007 under the Freedom ofInformation Law (hereinafter FOIL) (see Public Officers Law art 6) to respondents, sixcharter 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 therequested information that should be supplied under FOIL, as well as the applicability of thepersonal privacy exception for information sought for a commercial or fund-raising purpose(see [*2]Public Officers Law § 89 [2] [b] [former(iii)]).[FN*]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 andrespondents had acknowledged they would provide the titles and salaries of their teachers. Thequestion left to be answered is whether respondents also had to provide the full names of theirteachers. Supreme Court concluded that the full names must be provided under FOIL.Respondents appeal.
FOIL is premised on "the strong policy conviction that 'the public is vested with an inherentright to know and that official secrecy is anathematic to our form of government' " (Matter ofFederation of N.Y. State Rifle & Pistol Clubs v New York City Police Dept., 73 NY2d 92,95 [1989], quoting Matter of Fink v Lefkowitz, 47 NY2d 567, 571 [1979]). Accordingly,"FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public isgranted maximum access to the records of government" (Matter of Capital Newspapers, Div.of Hearst Corp. v Whalen, 69 NY2d 246, 252 [1987]; see Matter of Data Tree, LLC vRomaine, 9 NY3d 454, 462 [2007]). An agency seeking to assert statutory exemptions must"demonstrate that 'the material requested falls squarely within the ambit of one of these statutoryexemptions' " (Matter of Newsday, Inc. v Empire State Dev. Corp., 98 NY2d 359, 362[2002], quoting Matter of Fink v Lefkowitz, 47 NY2d at 571).
The Legislature has specifically provided that charter schools are subject to the provisions ofFOIL (see Education Law § 2854 [1] [e]). It follows that, for the limited purposeof FOIL, respondents are tantamount to an "agency" (Public Officers Law § 86 [3]) andtheir employees stand on similar ground as public employees. As such, respondents are requiredto 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 basicinformation about employees who are subject to FOIL has been found to be exempt fromdisclosure. Indeed, this basic information as to state employees, as well as public school teachersin this state, is accessible by anyone for any purpose on the Internet. While respondents arguethat there are sound reasons for not requiring the same level of transparency for respondents'teachers as public school teachers, the Legislature has made no such distinction.
The personal privacy exception upon which respondents rely, as it existed at the pertinenttime, does not support their argument that the teachers' full names need not be provided. Suchexception provided, in relevant part, that it was an unwarranted invasion of personal privacy toseek "lists of names and addresses if such lists would be used for commercial or fund-raisingpurposes" (Public Officers Law § 89 [2] [b] [former (iii)]). This language has beeninterpreted to include information sought under FOIL to be used in direct-mail membershipsolicitation, which in turn results in receipt of funds or dues (see e.g. Matter of Federation ofN.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 [2008]).While respondents produced proof from which petitioner's intent to solicit members could beinferred, [*3]there are two important distinctions in thisproceeding that keep it from falling within the holdings of cases finding the personal privacyexception applicable. First, the cases upon which respondents rely sought disclosure of namesand, significantly, also home addresses. Disclosing a person's home address implicates aheightened privacy concern (see generally Public Officers Law § 89 [7];Department of Defense v FLRA, 510 US 487 [1994]; Matter of Empire Realty Corp.v New York State Div. of Lottery, 230 AD2d 270, 272-273 [1997]). Here, petitioner hasdropped its initial request for the teachers' home addresses. Second, unlike the precedent cited byrespondents, this case involves a request for—as discussed above—basicinformation required to be kept (see Public Officers Law § 87 [3] [b]) aboutemployees whose status subjects them to FOIL on essentially the same footing as publicemployees (see Education Law § 2854 [1] [e]).
Peters, J.P., Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote *: The parties do not contend thatthe 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 wascommenced before the amendments became effective. We make no ruling regarding theamended statutory language.