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In the Matter of Lisa Harbatkin v. New York City Department of Records and Information Services

June 5, 2012

IN THE MATTER OF LISA HARBATKIN, APPELLANT,
v.
NEW YORK CITY DEPARTMENT OF RECORDS AND INFORMATION SERVICES, ET AL., RESPONDENTS.



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

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

In the middle years of the twentieth century, the New York City Board of Education investigated a large number of teachers and other employees who it suspected of being present or former members of the Communist Party. The investigation included interviews with many such people, who were promised confidentiality and asked to provide the names of those who had been in the Party with them.

An historian of the period now seeks disclosure under the Freedom of Information Law (FOIL) of unredacted transcripts of the interviews. We hold that she is entitled to everything in the transcripts except material that would identify informants who were promised confidentiality.

I

It seems that the Board of Education's "Anti-Communist Investigations" existed as early as 1936 and as late as 1962, but were at their most intense in the 1940s and 1950s. During that time, according to the petition in this case, an assistant Corporation Counsel for New York City "was assigned full-time for nearly a decade to ferret out alleged Communists and unrepentant former Communists in the New York City public school and university system." The records generated by the investigation include, according to the City, documentation of some 1,100 interviews.

According to a random sampling of the records by the City, all of the interviews included a promise of confidentiality, couched in very similar language. The interviewer would typically begin by saying that "there has been and will be no publicity given to the fact that you and I arehaving this discussion." He would add that the interview was "a matter of strict confidence between the Superintendent of Schools, acting through me, and yourself." Sometimes the interviewee would ask for, and receive, more assurance on that subject. The City points to one interview transcript that contains several such exchanges, including the following:

"I know that the sins of the parents are visited upon their children, and it's quite a thing for my son --"Q. Well, nobody would know. This is strictly confidential.

"A. I wouldn't want him, under any circumstance, to find out.

"Q. No, he won't, don't you worry about that."

"rather than have any repercussion on my son, I would --"Q. Please accept my word for it -- so just don't talk about it any more, there will be none, because, believe me, you are not the first teacher we have spoken to under these circumstances -- there have been a substantial number, believe me -- nobody knows they have been here, not even their principals; in some cases, like in your case, the members of their family don't know; they will never know, it's a closed door, so don't be concerned about it."

Petitioner is a historian with a personal reason for her interest in this bit of history: Both her parents were targets of the Anti-Communist Investigations, and her mother was among those interviewed. Beginning in 2007, petitioner sought access to the City's records relating to the investigations. She was granted access to some records, but the City's Department of Records and Information Services expressed concern that some of the material she sought would invade the privacy of people identified in the files. Eventually, the Department adopted a rule, the effect of which is to require redaction of any names and other identifying information, unless the person in question, or his or her legal heirs or custodians, has agreed to disclosure.

As a result, petitioner has seen only redacted versions of the interview transcripts. For example, one transcript in the record on appeal contains this among many similar passages:

"Q. I see. All right. Now let's take this third group. Who were the members of this ...


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