Can a school district withhold FOIL email disclosure without an in camera review?

No. The Connetquot (Suffolk County) Teachers’ Association filed to Freedom of Information Law (FOIL) requests for two categories of emails between the District Superintendent and the STEM chairperson and an assistant superintendent concerning elementary science courses and under enrollment of the AP Chemistry course.

The district either refused to turn over certain records or supplied redacted records claiming the intra-agency exemption and federal student privacy concerns in the production of the records. Under the inter-agency exemption public entities are exempt from disclosure of records which reflect the deliberative process in policy making.

The Court, after finding that the District’s support of its position was not specific enough ordered the production of records, in camera (by the Court in its chambers), to determine if the records should be disclosed. The Court wrote, “this Court has been deprived [of] the relevant and material information to make a reasoned judgment on whether the material sought to be protected is truly inter-agency or intra-agency or otherwise pure personal information properly withheld under the FOIL statute. Without this information, this Court would only be speculating whether respondent has properly discharged its duty under FOIL.”

In the Matter of the Application of ANTHONY F. FELICIO, JR., as President of the Connetquot Teacher’s Association, Inc., Petitioner, For Relief Pursuant to Article 78 of the New York Civil Practice Law and Rules v. CONNETQUOT CENTRAL SCHOOL DISTRICT OF ISLIP, Respondent. Docket No. 08339-2016, Motion Seq. No. 001 Mot D. Supreme Court, Suffolk County. 2017 NY Slip Op 31052(U) Motion Submit June 1, 2016. May 3, 2017.

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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