| Matter of Harbatkin v New York City Dept. of Records & Info.Servs. |
| 2011 NY Slip Op 04531 [84 AD3d 700] |
| May 31, 2011 |
| Appellate Division, First Department |
| In the Matter of Lisa Harbatkin, Appellant, v New YorkCity Department of Records and Information Services et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Elizabeth I. Freedman of counsel),for respondents. Miller Korzenik Sommers LLP, New York (Itai Maytal of counsel), for amicicuriae.
Order and judgment (one paper), Supreme Court, New York County (Marylin G. Diamond,J.), entered March 18, 2010, which denied a petition pursuant to the Freedom of Information Law(Public Officers Law §§ 84-90) for a judgment compelling respondent New YorkCity Department of Records and Information to grant unrestricted access to records related to theBoard of Education's "anti-Communist investigation," unanimously affirmed, without costs.
Respondents granted petitioner access to all of the records in their possession regarding theBoard of Education's multi-decade "anti-Communist" investigation, subject only to the conditionthat she not publish the names appearing in the "restricted files." Petitioner filed the instantpetition, seeking unrestricted access pursuant to the Freedom of Information Law (FOIL).
The trial court erred with regard to the applicability of the exemption from disclosure for"information of a personal nature reported in confidence to an agency and not relevant to theordinary work of such agency" (Public Officers Law § 89 [2] [b] [v]). Construing theexemption narrowly (see Matter of Johnson v New York City Police Dept., 257 AD2d343, 346 [1999], lv dismissed 94 NY2d 791 [1999]), we find that transcripts ofinterviews regarding Communist Party membership, which the lead interrogator explicitlyreminded schoolteacher-interviewees was sufficient basis for termination of employment, cannotbe fairly characterized as "not [*2]relevant" to the work of theBoard of Education.
Nevertheless, we agree with the trial court's conclusion that the privacy interests of thesurviving subjects of the investigation and their relatives (see Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d477 [2005]) outweigh petitioner's interest in being able to publish the names of teacherscontained in the records at issue.
Petitioner also argues that the Rules of City of New York Department of Records andInformation Services (49 RCNY) § 3-02, which is specifically addressed to standards foraccess to the "restricted files" in the anti-Communist records, violates her state and federalconstitutional rights to free speech. We decline to rule on that claim. The court below decided thepetition purely on FOIL grounds. Therefore, any ruling on petitioner's constitutional claim wouldbe merely advisory (see New York Pub. Interest Research Group v Carey, 42 NY2d 527,529-530 [1977]).
Accordingly, the petition was properly denied. Concur—Mazzarelli, J.P., Friedman,Catterson and Manzanet-Daniels, JJ.