Mulgrew v. Bd. of Educ. of the City Sch. Dist. of the New York, Docket Number: 113813/10
| Decision Date | 10 January 2011 |
| Docket Number | Docket Number: 113813/10 |
| Citation | 2011 NY Slip Op 30042 |
| Parties | MICHAEL MULGREW, as President of the UNITED FEDERATION OF TEACHERS, Local 2, American Federation of Teachers, AFL-CIO, on behalf of all represented employees in the City School District of the City of New York, Petitioner, v. BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK and JOEL I. KLEIN, as Chancellor of the City School District of New York, Respondents. For a Judgment Pursuant to Article 78 of the CPLR and for Declaratory Relief Pursuant to CPLR 3001 |
| Court | New York Supreme Court |
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for: _
Notice of Motion and Affidavits Annexed.................................... 1
Answering Affidavits and Cross Motion...................................... 2
Replying Affidavits...................................................................... 3
Exhibits...................................................................................... 4
Petitioner seeks an order directing respondents to redact and keep confidential the names of any teachers that appear in any Teacher Data Reports ("TDRs") released to the public. Various news organization with pending FOIL requests to release the TDRs with the teachers' names included now move to intervene in this proceeding (the "Press Intervenors"). For the reasons setforth below, the Press Intervenors' motion to intervene is granted without opposition and the petition to redact the teachers' names is denied.
As an initial matter, this court is not making a de novo determination as to whether the TDRs with the teachers' names should be released. This petition has been filed under Article 78. The only question before this court is whether the decision by the Department of Education ("DOE") to release the TDRs in a form that discloses teachers' names was arbitrary and capricious under the law. This court is not passing judgment on the wisdom of the decision of the DOE, whether from a policy perspective or from any perspective, or whether the DOE had discretion under the law to make a different decision, nor is this court making any determination as to the value, accuracy or reliability of the TDRs. This court is deciding the only issue before it, the purely legal issue under Article 78 of whether the DOE's decision was without a rational basis, rendering it arbitrary and capricious.
The relevant facts are as follows. Beginning in the 2007-08 school year, the DOE launched a pilot program in which a student's predicted improvement on state tests is compared with the student's actual improvement. The comparison is then used to determine that child's teacher's "value added" — it attributes the gain or loss in test scores to the child's teacher while controlling for other factors that influence student achievement such as poverty and English-language learner status. Beginning on August 16, 2010 and continuing through October 27, 2010, the Press Intervenors made nine separate requests under the Freedom of Information Law ("FOIL") specifically requesting TDRs, including disclosure of teachers' names. Previous FOIL requests for the TDRs had not explicitly requested the teachers' names. The DOE had responded to those previous requests by redacting teachers' names and releasing the redacted TDRs only.
Upon learning that the DOE had determined that it would comply with these most recent FOIL requests in a manner that would disclose the teachers' names as requested, petitioner the United Federation of Teachers (the "UFT") commenced the instant petition.
This court finds that the UFT has standing to bring this proceeding to challenge the DOE's determination to release the records even though it is not the entity which requested the records pursuant to FOIL. FOIL does not explicitly address the issue of whether the subject of records may challenge their disclosure and there is no case law directly on point. However, the parties do not cite any case in which such a party was prohibited from bringing a proceeding. In fact, several courts have permitted such cases to go forward while declining to explicitly rule on the issue. See Anonymous v Board of Education for the Mexico Central School District, 162 Misc.2d 300 (Sup. Ct., Oswego Cty 1994); Capital Newspapers Div. of Hearst Corp. v Burns, 67 N.Y.2d 562 (1986). In Verizon New York Inc. v Mills, 24 Misc.3d 1230(A) (Sup. Ct., Westchester Cty, 2007), affd, 60 A.D.3d 958 (2nd Dept 2009), the court held that a party will have standing to challenge the release of records of which it is the subject if it can establish that the administrative action will have a "harmful effect" on it and that it is within the "zone of interest" to be protected by the statute. See 24 Misc.3d 1230(A) (citing Dairylea Cooperative, Inc. v Walkely, 38 N.Y.2d 6 (1975)).
In the instant case, this court holds that the UFT has standing to bring this proceeding. The UFT has established that the administrative action will have a harmful effect on it and that it is within the zone of interest encompassed by the statute. FOIL is intended to promote disclosure by government but also to protect the interests of parties who would be harmed by such disclosure if the subject records fall into one of the exceptions enumerated under FOIL. See Dairylea, 38 N.Y.2d 6.
This court now turns to the substance of the UFT's petition. As discussed above, the only issue before the court in this Article 78 proceeding is whether the DOE was "arbitrary and capricious" in determining that the unredacted TDRs would be released because the names of individual teachers did not fall into any exception under FOIL. The question of whether this court would have made a de novo determination to release the teachers' names is not before this court. Under Article 78, this court may only determine whether the DOE's determination was "without sound basis in reason and...taken without regard to the facts." Pell v Board of Education, 34 N.Y.2d 222, 231 (1974). Whether an agency's determination to release records was arbitrary and capricious must be viewed in light of the fact that the burden of proving that the requested material is exempt from disclosure falls on the agency seeking to withhold that material. See Capital Newspapers Div. of Hearst Corp. v Burns, 67 N.Y.2d 562 (1986).
FOIL mandates the disclosure of agency records unless they are subject to a specific exemption. See NY Public Officers Law ("POL") §87(2) () (emphasis added). While an agency must release records to which no exemption applies, it is within the agency's discretion whether to withhold records to which an exemption applies ( ) (emphasis added). POL §87(2). The potentially relevant exceptions in this case include "inter-agency or intra-agency materials which are not: (i) statistical or factual tabulations of data" and items which, "if disclosed, would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article." POL §87(2)(g) and (b). The DOE determined that none of therelevant exceptions to disclosure under FOIL applied to the teachers' names on the TDRs and that, accordingly, the names would be released.
The DOE's determination that teachers' names were not subject to any of the aforementioned exemptions was not arbitrary and capricious. Regarding the exception for interagency or intra-agency materials that are not statistical or factual tabulations, the DOE could have rationally determined that, although the unredacted TDRs were intra-agency records, they are statistical tabulations of data which must be released. POL §87(2)(g)(i). Such a determination is not arbitrary or capricious. The UFT's argument that the data reflected in the TDRs should not be released because the TDRs are so flawed and unreliable as to be subjective is without merit. The Court of Appeals has clearly held that there is no requirement that data be reliable for it to be disclosed. See Gould v New York City Police Dept., 89 N.Y.2d 267, 277 (1996). In Gould, the court held witness statements must be released under FOIL "insofar as [they] embod[y] a factual account of the witness's observations," regardless of whether the witness's account was actually credible and/or correct. Id. As the court explained, "factual data... simply means objective information, in contrast to opinions, ideas or advice..." Id. at 276. Therefore, the unredacted TDRs may be released regardless of whether and to what extent they may be unreliable or otherwise flawed.
The UFT's reliance on Elentuck v Green, 202 A.D.2d 425 (2nd Dept 1994), in which the court held that it was proper to withhold lesson observation reports, is misplaced. The court there held that lesson observation reports are not statistical or factual data as they consist solely of advice, criticisms, evaluations and recommendations prepared by the school's assistant principal. In the present case, unlike in Elentuck, the determination by the DOE that the TDRsare statistical data has a rational basis. Unlike lesson observation reports, which are individual opinions of a teacher's lesson, the unredacted TDRs are a compilation of data regarding students' performance.
The DOE could have also rationally determined that releasing the teachers' names was not an "unwarranted invasion of personal privacy". FOIL permits withholding records if disclosure would constitute "an unwarranted invasion of personal privacy" under POL §89(2). POL §87(2)(b). POL §89(2) provides that "an unwarranted invasion of personal privacy includes, but shall not be limited to" various categories of data illustrated by a list of six items including employment,...
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