Kryston v. Board of Ed., East Ramapo Central School Dist.

• Decision Date: 11 August 1980
• Citation: 430 N.Y.S.2d 688,77 A.D.2d 896
• Parties: In the Matter of Elizabeth B. KRYSTON, Appellant, v. BOARD OF EDUCATION, EAST RAMAPO CENTRAL SCHOOL DISTRICT, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 688

430 N.Y.S.2d 688

77 A.D.2d 896

In the Matter of Elizabeth B. KRYSTON, Appellant, v. BOARD OF EDUCATION, EAST RAMAPO CENTRAL SCHOOL DISTRICT, et al., Respondents.

Supreme Court, Appellate Division, Second Department.

Aug. 11, 1980.

Daniel J. Kryston, Spring Valley, for appellant.

Greenberg & Wanderman, Spring Valley (David Greenberg, Spring Valley, of counsel, Stephen M. Fromson, Spring Valley, on brief), for respondents.

Before MOLLEN, P. J., and HOPKINS, TITONE and MANGANO, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to compel the respondents, inter alia, to grant petitioner access to certain test scores of students in the respondent school district, the appeal is from so much of the judgment of the Supreme Court, Rockland County, dated December 20, 1979, as denied access to those of the test scores which are compiled in alphabetical order.

Judgment reversed insofar as appealed from, on the law, without costs or disbursements, the provisions denying disclosure of certain test scores in alphabetical order are deleted therefrom, and respondents are directed to rearrange the order of the test scores in question, delete the names of the students therefrom, and release the records to the petitioner.

The petitioner, a parent of a student in the respondent school district, seeks disclosure of certain standardized reading and mathematics test scores of children who attended grade 3 in the El Dorado School during the 1977-1978 school year. Specifically, the petitioner expressed an interest in the scores of six tests. Of these, the scores on four were tabulated and recorded alphabetically by student surname. The remaining test scores were not compiled in alphabetical order.

When respondents refused to release any of the scores, the petitioner instituted a proceeding pursuant to CPLR article 78, inter alia, to compel disclosure. The court granted the petition in part by directing, inter alia, that the respondents release those scores not compiled in alphabetical order after first deleting the names of the students. The court declined, however, to order the release of scores listed in alphabetical order, holding that such disclosure would violate section 87 (subd. 2, par. (b)) of the Public Officers Law as well as relevant provisions of the Family Educational Rights and Privacy Act (U.S.Code, tit. 20, § 1232g). The court reasoned that those scores, even if released with the names of students deleted, would be identifiable to at least some of the students since their number was sufficiently small 75 to permit correlation to the alphabetical list. Recognizing that this danger could be obviated by directing the respondents to rearrange the scores in other than alphabetical order, the court nevertheless declined to do so holding that the respondents had no affirmative duty to prepare a new record in order to make information available for public inspection. Under the circumstances of this case, we conclude that the court's failure to order disclosure was error.

The petitioner sought disclosure pursuant to article 6 of the Public Officers Law, known as the Freedom of Information Law. In pertinent part, the Public Officers Law provides:

" § 87. Access to agency records

"2. Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that:

"(a) are specifically exempted from disclosure by state or federal statute;

"(b) if disclosed would constitute an unwarranted invasion of personal privacy".

" § 89. General provisions relating to access to records; certain cases

"2 * * * (c) Unless otherwise provided by this article, disclosure shall not...