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New York State United Teachers v. Brighter Choice Charter School

November 18, 2010


The opinion of the court was delivered by: Pigott, J.

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Petitioner New York State United Teachers ("NYSUT") submitted requests under the Freedom of Information Law ("FOIL") to the six respondent Charter Schools*fn1 seeking, among other things, payroll records showing the full names, titles, corresponding salaries, and home addresses of all persons employed as teachers, instructors and faculty (collectively referred to hereafter as "teachers"). The Charter Schools partially denied the request, stating that full compliance would constitute an unwarranted invasion of personal privacy under Public Officers Law § 89 (2)(b).*fn2

After its unsuccessful administrative appeals, NYSUT commenced these now-consolidated hybrid CPLR article 78/declaratory judgment actions against the Charter Schools and their administrative officials seeking the teachers' names, titles and salaries, claiming that non-disclosure of such information was arbitrary, capricious and in violation of law. As relevant to this appeal, the Charter Schools asserted in their answers that they withheld portions of the requested information based on the commercial and fund-raising exemption of Public Officers Law § 89 (2)(b)(iii).

The parties agreed that the only remaining issue before Supreme Court was disclosure of the teachers' full names, the Charter Schools having agreed to provide the title and salary information. Supreme Court ordered the Charter Schools to disclose the names of their teachers and the Appellate Division unanimously affirmed, noting that although the Charter Schools submitted proof from which it could be inferred that NYSUT's intent was to solicit members, the Charter Schools were required to disclose the names for two reasons, first, because NYSUT dropped its request for home address information, and second, because the Charter Schools were required to keep basic employee information pursuant to Public Officers Law § 87 (3)(b) (64 AD3d 1130, 1131-1132 [3d Dept 2009]). We now reverse.

Charter schools are clearly subject to FOIL (see Education Law § 2854 [1][e]), meaning that they must maintain "a record setting forth the name, public office address, title and salary of every officer or employee" (Public Officers Law § 87 [3][b]). There is a presumption that such records must be made "available for public inspection and copying" (Public Officers Law § 87 [2][b]). There is an exception, however. Under Public Officers Law § 89 (2), an entity subject to FOIL may deny access to records that "if disclosed would constitute an unwarranted invasion of personal privacy," which, as relevant here, includes the "sale or release of lists of names and addresses if such lists would be used for commercial*fn3 or fund-raising purposes" (Public Officers Law § 89 [2][b][iii]).

In Matter of Federation of N.Y. Rifle & Pistol Clubs v New York City Police Dept. (73 NY2d 92 [1989]), an organization requested the names and addresses of rifle and shotgun permit holders so it could mail them circulars describing its organization, its pursuits and the services it performed on behalf of its members, along with information concerning the organization's annual membership dues (see id. at 96). The organization did not dispute that its main reason for conducting the mailings was to obtain membership dues to support its activities, meaning that the purpose of the mailings was to raise funds. We rejected the organization's assertion that solicitation of funds to support an organization was distinctly different from a direct solicitation of contributions, noting that:

"[i]t is the purpose of the solicitation which matters, not what it is called, the manner or form in which it is presented to the solicitees, or the incidental benefits available to those who make a payment... If... dues received are intended to support the general activities of the organization and to further its overall objectives, the solicitation activity is 'fund-raising'" (id. at 96-97).

Giving the term "fund-raising" its "natural and most obvious meaning[]" (Matter of Capital Newspapers, Div. of Hearst Corp. v Whalen, 69 NY2d 246, 251 [1987]), it is evident that NYSUT's intent in requesting the teacher names is to expand its membership and, by extension, obtain membership dues. Counsel for NYSUT conceded as much during oral argument before Supreme Court.

We further note that ordering disclosure of the names would do nothing to further the policies of FOIL, which is to assist the public in formulating "intelligent informed choices with respect to both the direction and scope of governmental activities" (Matter of Fink v Lefkowitz, 47 NY2d 567, 571 [1979]). If anything, "it is precisely because no governmental purpose is served by public disclosure" of this information that section 87 (2)(b)(iii)'s privacy exemption falls squarely within FOIL's statutory scheme (Matter of Federation of N.Y. Rifle & Pistol Clubs, 73 NY2d at 97 [emphasis in original]). There is no indication that NYSUT intends to use the names to, for example, expose governmental abuses or evaluate governmental activities. It appears, instead, that NYSUT seeks the teachers' names as a convenient mechanism for contacting prospective members. Although NYSUT certainly possesses a right to seek dues-paying members, it may not rely on FOIL to achieve that end.

The dissent notes the difference between Federation and this case, pointing out that the organization in Federation sought personal information about private citizens--as opposed to personal information about public citizens. But the exemption is blind to the distinction between the privacy of public employees and private citizens. Rather, it is the purpose for which the information is sought that drives the analysis.

The dissent's reliance on Education Law § 2854 (3)(c-1)(i)*fn4 is similarly misplaced (dissenting op., at 5); the issue before us is whether the Charter Schools must disclose the teachers' names pursuant to FOIL, not whether the Charter Schools are denying NYSUT access to school employees. Merely because charter schools must afford employee organizations access under the Education Law, it does not follow that the employee organizations may circumvent the FOIL exemptions in achieving those ends. Nor, as the dissent suggests, does Public Officers Law § 89 (7) mandate presumptive disclosure of employee records (dissenting op., at 6-7); that provision permits disclosure of names if "otherwise available under [FOIL]."

Contrary to the holding of the Appellate Division, the fact that the Charter Schools must comply with the mandates of section 87 (3)(b) does not imply that they must, ipso facto, disclose that information without first considering whether it falls within a denoted exemption; FOIL clearly states that an agency must make records (or portions thereof) available for public inspection and copying unless the disclosure would constitute an unwarranted invasion of personal privacy under section 89 (2) (see Public Officers Law § 87 [2]). Simply because the record is required to be maintained under section 87 (3)(b) does not mean that it must be disclosed, particularly in circumstances where an exemption applies.

Nor is there merit to NYSUT's contention that it is entitled to the teachers' names because it dropped its request for "names and addresses" and seeks only the names. Section 89(2)(b)(iii) would have little meaning if entities could circumvent the fund-raising exemption by gaining access to only the names and then linking them to a home address. The policy concerns underlying the personal privacy exemption are no less implicated under that scenario.

Accordingly, the order of the Appellate Division should be reversed, with costs, and that part of the petition seeking disclosure of the names of the teachers ...

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