In the Matter of New York State United Teachers v. Brighter Choice Charter School
Annotate this Case
Download PDF
=================================================================
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 181
In the Matter of New York State
United Teachers,
Respondent,
v.
Brighter Choice Charter School
et al.,
Appellants.
Nicholas J. D'Ambrosio, Jr., for appellants.
Marilyn Raskin-Ortiz, for respondent.
PIGOTT, J.:
Petitioner New York State United Teachers ("NYSUT")
submitted requests under the Freedom of Information Law ("FOIL")
- 1 -
- 2 -
No. 181
to the six respondent Charter Schools1 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).2
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
1
Those charter schools are Brighter Choice, Henry Johnson,
Kipp Tech Valley, Albany Community, Albany Preparatory and
Achievement Academy. None of the Charters Schools' teachers are
members of a labor union.
2
The dissent erroneously relies on Matter of West Harlem
Bus. Group v Empire State Dev. Corp. (13 NY3d 882 [2009]) in
claiming that the Charter Schools did not articulate a
particularized and specific justification for denying NYSUT
access to the names (dissenting op., at 5-6). Although, in a
statement that can be considered only dicta, this Court in West
Harlem criticized the records access officer for not complying
with that standard, the Court upheld disclosure of the documents
on a different ground (see id. at 885).
- 2 -
- 3 -
No. 181
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
- 3 -
- 4 -
No. 181
lists would be used for commercial3 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
3
This is the wording of the exemption at the time NYSUT
made its FOIL requests. However, by the time the parties argued
before Supreme Court, a statutory amendment had gone into effect
and the word "commercial" had been replaced by the word
"solicitation" (see L 2008, ch 223 § 4, eff Aug. 6, 2008). The
parties do not contend that the amended language controls.
- 4 -
- 5 -
No. 181
'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
- 5 -
- 6 -
No. 181
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)(c1)(i)4 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,
4
Education Law § 2854 (3)(c-1)(i) states: "If employees of
the charter school are not represented, any charter school
chartered pursuant to this article [Article 56: Charter Schools]
must afford reasonable access to any employee organization during
the reasonable proximate period before any representation
question is raised."
- 6 -
- 7 -
No. 181
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 employed by the Charter
Schools should be denied.
- 7 -
Matter of New York State United Teachers v Brighter Choice
Charter School, et al.
No. 181
CIPARICK, J.(dissenting):
Because I believe the information requested by New York
State United Teachers ("NYSUT") was required to be disclosed by
the Freedom of Information Law ("FOIL"), I respectfully dissent.
When it enacted the Charter Schools Act in 1998, the
Legislature specifically subjected charter schools to FOIL (see
Education Law § 2854 [1] [e] ["charter school[s] shall be subject
to the provisions of articles six [FOIL] and seven [Open Meetings
Law] of the public officers law"]).
Thus, for FOIL purposes, a
charter school is equivalent to any public agency or public
school.
FOIL "provides the public with broad access to the
records of government" (Matter of Data Tree, LLC v Romaine, 9
NY3d 454, 462 [2007] [quotation marks and citation omitted]).
An
agency must make available for public inspection and copying all
records unless the agency can establish that a particular request
falls squarely within one of FOIL's specifically enumerated
categories of materials exempted from disclosure (see id.; see
also Matter of Scott, Sardano & Pomeranz v Records Access Officer
- 1 -
- 2 of City of Syracuse, 65 NY2d 294, 296-297 [1985]).
No. 181
Although FOIL
generally does not require that an agency subject thereto create
records other than those generated in the normal course of agency
business (Public Officers Law § 89 [3]), it does require that
each agency maintain "a record setting forth the name, public
office address, title and salary of every officer or employee of
the agency" (Public Officers Law § 87 [3] [b]).
To effectuate FOIL's overriding policy -- which is that
"the public is vested with an inherent right to know and that
official secrecy is anathematic to our form of government"
(Matter of Fink v Leftkowitz, 47 NY2d 567, 571 [1979]; see also
Public Officers Law § 84) -- the enumerated list of records
exempt from FOIL disclosure is interpreted narrowly (see Matter
of Russo v Nassau County Community Coll., 81 NY2d 690, 697
[1993]).
Moreover, the burden for establishing the applicability
of an exemption rests on the agency, which must "articulat[e] a
particularized and specific justification for denying access" to
the requested documents (Matter of Capital Newspapers Div. of
Hearst Corp. v Burns, 67 NY2d 562, 566 [1986]; see also Matter of
West Harlem Bus. Group v Empire State Dev. Corp., 13 NY3d 882,
885 [2009]).
As relevant here, FOIL exempts from disclosure "records
or portions thereof that . . . if disclosed, would constitute an
unwarranted invasion of personal privacy under the provisions of
subdivision two of section eighty-nine of this article" (Public
- 2 -
- 3 Officers Law § 87 [2] [b]).
No. 181
Section 89 states that "[a]n
unwarranted invasion of personal privacy includes" the "sale or
release of lists of names and addresses if such lists would be
used for commercial1 or fund-raising purposes" (Public Officers
Law § 89 [2] [b]).
The majority, relying on Matter of Federation of N.Y.
State Rifle & Pistol Clubs v New York City Police Dept. (73 NY2d
92 [1989]), concludes that "NYSUT's intent in requesting the
teacher names [was] to expand its membership and, by extension,
obtain membership dues" and, therefore, the release of teacher
names requested by NYSUT was justifiably denied as an unwarranted
invasion of personal privacy (majority op., at 4-5).
I disagree.
In the Federation case, as the majority explains, an
organization sought the names and addresses of citizens holding
rifle and shotgun permits (see 73 NY2d at 96).
The purpose of
the request was to send those permit holders information on the
organization, including information about the organization's
annual membership rates (see id.).
Because the organization did
not dispute that the purpose of its mailings was to solicit new
members and thereby receive funding, we concluded that the FOIL
request for permit-holders' names and addresses was properly
denied under the fund raising exemption (see id. at 96-97).
Specifically, we observed that "direct-mail membership
1
As the majority notes, the statute has been amended to
replace "commercial" with "solicitation"; the older version of
the statute is at issue here (see majority op., at 3 n 2).
- 3 -
- 4 -
No. 181
solicitation [as] proposed [by the Federation] would constitute
'fund-raising' if that term is given its natural and most obvious
meaning" (id. at 96).
However, we also noted in the Federation case: "It is
precisely because no governmental purpose is served by public
disclosure of certain personal information about private citizens
that the privacy exemption of section 87 (2) (b) fits comfortably
within FOIL's statutory scheme" (id. at 97 [emphasis added]).
Two important points follow from this statement, which
distinguish Federation from this case.
First, here, the public
disclosure of personal information is not about private citizens,
but about public employees -- employees for whom charter schools
are specifically required by FOIL to maintain certain information
(see Public Officers Law § 87 [3] [b]; see also Education Law §
2854 [1] [e]).
Second, there is unquestionably a public purpose served
by permitting NYSUT to obtain the names of charter school
teachers: there is a strong public policy, embodied in the Taylor
Law (Civil Service Law art. 14) in favor of organization and
collective bargaining by public employees (see also NY Const.,
art 1, § 17 ["Employees shall have the right to organize and to
bargain collectively through representatives of their own
choosing"]).
Rather than negating that public policy in the
creation of charter schools, the Legislature reinforced it (see
Education Law § 2854 [3] [c-1] [i] ["if employees of the charter
- 4 -
- 5 -
No. 181
school are not represented, any charter school chartered pursuant
to this article must afford reasonable access to any employee
organization during the reasonable proximate period before any
representation question is raised"] [emphasis added]; see also
Education Law § 2854 [3] [c-2] [subjecting charter schools to the
employer neutrality provisions of the civil service law]).
For
these reasons, Federation is distinguishable from this case and
the majority's reliance on it is misplaced.
Additionally, the charter schools failed to carry their
burden to "articulat[e] a particularized and specific
justification for denying access" to the requested documents
(Matter of Capital Newspapers, 67 NY2d at 566; West Harlem, 13
NY3d at 885; see also Data Tree, 9 NY3d at 462-463).
In West
Harlem, the records access officer for the Empire State
Development Corporation ("ESDC") relied on the statutory language
of Public Officers Law § 87 (2) (c) as the basis for denying the
West Harlem Business Group's ("WHBG") request for certain
records, and ESDC's appeals officer "merely parroted the same
language" in a letter denying the appeal (13 NY3d at 884).
We
concluded that this, without more, constituted a failure by ESDC
to "fully explain in writing" to WHBG the reasons for further
denial as required by FOIL (id., quoting Public Officers Law § 89
[4] [a]).
We ultimately held that ESDC had "failed to meet its
burden of proof relative to the exemptions" it sought to invoke
to deny disclosure, thereby justifying Supreme Court's decision
- 5 -
- 6 to order the documents released (id. at 886).
No. 181
Here, as in West
Harlem, the charter schools initially denied NYSUT's request by
invoking the statutory language of Public Officers Law § 89 (2)
(b), stating that the disclosure of the information sought "would
constitute an unwarranted invasion of personal privacy."
Each of
the schools used identical language in denying the initial FOIL
request.
Moreover, the record reflects that, to the extent the
charter schools responded to NYSUT's appeal of the initial
denials, they "merely parroted the same language" in their
response.
The charter schools first invoked the specific
exemption for fund raising during the course of this article 78
proceeding, in response to NYSUT's petition.
It is unclear why
the majority excuses this failure by the charter schools when we
did not excuse the failure of ESDC in West Harlem on virtually
identical facts.
In short, the majority's reliance on Federation is
misplaced and, in any event, the charter schools' failure to
articulate a specific reason for the denial of NYSUT's request
constituted a sufficient basis for the courts below to conclude
that the requested information was not exempt under the personal
privacy/fund raising exemption.
Aside from ignoring that the
charter schools failed to meet their burden of justifying their
decision to withhold information, the majority has, in effect,
created a rule that unions and other organizations that rely on
membership dues can never obtain the names of public employees,
- 6 -
- 7 -
No. 181
because such organizations may, at some future time, seek duespaying members.
This is particularly troublesome in a case, such
as this, where a union, which should be afforded "reasonable
access" to public employee records (Education Law § 2854 [3]
[c-1] [i]; Public Officers Law 89 [7]), is denied such access
under the guise of the fund-raising exception.
For these
reasons, I respectfully dissent.
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
Order reversed, with costs, and that part of the petition seeking
disclosure of the names of the teachers, instructors and faculty
employed by the charter schools denied. Opinion by Judge Pigott.
Judges Graffeo, Read and Smith concur. Judge Ciparick dissents
in an opinion in which Chief Judge Lippman and Judge Jones concur.
Decided November 18, 2010
- 7 -
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.