| Mulgrew v Board of Educ. of the City School Dist. of the City ofN.Y. |
| 2011 NY Slip Op 06328 [87 AD3d 506] |
| August 25, 2011 |
| Appellate Division, First Department |
| Michael Mulgrew, as President of the United Federation ofTeachers, Local 2, American Federation of Teachers, AFL-CIO, on Behalf of All RepresentedEmployees in the City School District of the City of New York, Appellant, v Board ofEducation of the City School District of the City of New York et al., Respondents. Dow Jones &Company, Inc., et al., Intervenors-Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Victoria Scalzo of counsel), forBoard of Education of the City School District of the City of New York and Joel I. Klein,respondents. Levine Sullivan Koch & Schulz, LLP, New York (David A. Schulz of counsel), for DowJones & Company, Inc., NYP Holdings, Inc., Daily News, L.P., The New York Times Companyand NY1 News, respondents. Richard E. Casagrande, New York, for amici curiae.
Order and judgment (one paper), Supreme Court, New York County (Cynthia S. Kern, J.),entered January 11, 2011, which, to the extent appealed from as limited by the briefs, denied thepetition and dismissed the proceeding brought pursuant to CPLR article 78 seeking to enjoinrespondents from releasing, in response to Freedom of Information Law (FOIL) requests,Teacher Data Reports that disclose teachers' names, unanimously affirmed, without costs.
Supreme Court improperly reviewed respondents' determination to release the requestedreports under the "arbitrary and capricious" standard set forth in CPLR 7803 (3). The courtshould have determined whether respondents' determination "was affected by an error of law"(CPLR 7803 [3]). In any event, the matter need not be remanded since respondents properlydetermined that the requested reports should be released under FOIL (cf. Matter of Verizon N.Y., Inc. vDevita, 60 AD3d 956, 957 [2009]).
Public agency records, like the ones at issue here, are presumptively open for public [*2]inspection and copying, and the party seeking an exemption fromdisclosure has the burden of proving entitlement to the exemption (Public Officers Law §89 [5] [e]; see Matter of Bahnken v NewYork City Fire Dept., 17 AD3d 228, 229 [2005], lv denied 6 NY3d 701 [2005]).Petitioner, as the party claiming the exemption, failed to sustain that burden. Although thematerials sought are, in fact, intra-agency materials under Public Officers Law § 87 (2) (g),they are nonetheless subject to disclosure as "statistical or factual tabulations or data" undersection 87 (2) (g) (i) (see Matter of New York 1 News v Office of President of Borough ofStaten Is., 231 AD2d 524, 525 [1996]). "The mere fact that some of the data might be anestimate or a recommendation does not convert it into an expression of opinion" subject to aFOIL exemption (Matter of Polansky v Regan, 81 AD2d 102, 104 [1981]; see alsoIngram v Axelrod, 90 AD2d 568 [1982]).
The requested reports also do not fall under the exemption for personal privacy set forth inPublic Officers Law § 87 (2) (b). Although privacy interests are implicated by the type ofinformation sought to be redacted, the release of the information does not fall within one of thesix examples of an "unwarranted invasion of personal privacy" set forth in Public Officers Law§ 89 (2) (b) (see Matter of NewYork Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, 485 [2005]). Further, whenbalancing the privacy interests at stake against the public interest in disclosure of the information(see id.), we conclude that the requested reports should be disclosed. Indeed, the reportsconcern information of a type that is of compelling interest to the public, namely, the proficiencyof public employees in the performance of their job duties (see Stern v Federal Bur.Investigation, 737 F2d 84, 92 [1984]).
We have considered the parties' remaining contentions and find them unavailing.Concur—Tom, J.P., Saxe, Acosta and Abdus-Salaam, JJ. [Prior Case History: 31 Misc3d 296.]