Can a scholar seeking to publish names of persons involved in the DOE’s anti-communist investigations of the 1940’s and 1950’s obtain that right under the Freedom of Information Law (FOIL)?

No. The Freedom of Information Law, a statutory creature of the 1970’s, provides access to certain governmental records. It is a valuable, but underutilized, tool. While the law is broad in scope there are exceptions to disclosure.

Lisa Harbatkin, a self-described scholar, is doing research about the anti-communist purges of the 1940’s and 1950’s allegedly spearheaded by Assistant Corporation Counsel Saul Moskoff, and the effect on educational policy.

According to Harbatkin’s petition the purges resulted in the departmental trials of 50 teachers “based on nothing more than their alleged political beliefs, and resulted in a total of 400 schoolteachers – including Petitioner Harbatkin’s father – eventually surrendering their invaluable teaching licenses in lieu of subjecting their constitutionally protected rights of political association to scrutiny in the Board of Education’s investigation led by Saul Moskoff.”

The Department of Records and Information Services, the repository of these records, permitted Harbatkin access to the records but prohibited her from disclosing identifying information to protect the privacy of the those individuals and their families. The records included those who provided information as well as those targeted for their alleged communist sympathies.

Justice Marylin Diamond of New York Supreme Court found that the City’s refusal to provide full access reasonable to protect privacy rights and the Appellate Division affirmed.

They wrote, “the privacy interests of the surviving subjects of the investigation and their relatives…outweigh petitioner’s interest in being able to publish the names of teachers contained in the records at issue.”

In re Lisa Harbatkin, Petitioner-Appellant, v New York City Department of Records and Information Services, et al., Respondents-Respondents. Advance Publications, Inc., ALM Media, L.L.C., Associated Press, Bloomberg News, Gatehouse Media, Inc., The Hearst Corporation, The New York News Publishers Association, The New York Times Company and Pen American Center, Amici Curiae. SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2011 NY Slip Op 4531; 2011 N.Y. App. Div. LEXIS 4452, May 31, 2011

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