Van Allen v. McCleary

• Decision Date: 18 January 1961
• Docket Number: No. 3,E,3
• Citation: 211 N.Y.S.2d 501,27 Misc.2d 81
• Parties: Application of Edward J. VAN ALLEN, Petitioner, for an order under Article 78 of the Civil Practice Act, v. Edward J. McCLEARY, Superintendent, East Meadow Public Schools; Frederick C. Carver, President, and Max Margules, Arthur C. Leatherman, Charles Esposito, Frances Reder, Jane Ford, Anthony Barbaccia and others, constituting the Board of Education, Union Free School Districtast Meadow, Town of Hempstead, County of Nassau, Respondents.
• Court: New York Supreme Court

Page 501

211 N.Y.S.2d 501

27 Misc.2d 81

Application of Edward J. VAN ALLEN, Petitioner, for an order under Article 78 of the Civil Practice Act, v. Edward J. McCLEARY, Superintendent, East Meadow Public Schools; Frederick C. Carver, President, and Max Margules Arthur C. Leatherman, Charles Esposito, Frances Reder, Jane Ford, Anthony Barbaccia and others, constituting the Board of Education, Union Free School District No. 3, East Meadow Town of Hempstead, County of Nassau, Respondents.

Supreme Court, Special Term, Nassau County, Part I.

Jan. 18, 1961.

John H. Daniels, Brooklyn, for petitioner.

John H. Mariano, New York City, for New York State Psychological Association, Inc., amicus curiae.

John H. Borrie, Mineola, for respondents.

WILLIAM R. BRENNAN, Jr., Justice.

This is a proceeding brought pursuant to Article 78 of the Civil Practice Act by which the petitioner seeks an order directing the respondents to submit to him for inspection all of the school records of his son, Edward M. Van Allen.

The facts are not in dispute. Petitioner, prompted by word from certain members of the faculty of his son's school to the effect that the boy was in need of psychological treatment and therapy, retained the services of a private physician, who, on October 14, 1960, with the written authorization of the petitioner, wrote to the school psychologist requesting an abstract of the psychological findings. On October 31, 1960 the school psychologist forwarded to the private physician a copy of a report written for the guidance of school personnel in connection with the student. In the meantime, on October 28, 1960, petitioner made a formal written demand upon the Board that it direct the Superintendent of Schools to make all school records of his son available for his inspection, and on November 2, 1960 the demand was refused. In refusing to make these records available, the Board outlined its policy to keep the parent informed as to the progres of his child through report cards, periodic private conferences with teachers, and, if requested, interpretations of the personal file of the child by qualified school personnel, again by the conference method. In short, the School Board has offered full cooperation within the confines of its policy, but the petitioner, accusing the Board of concealment for the purpose of covering up the 'incompetency of one or more taxpayer-paid school employees', wants not conferences, but the written records.

The nature of this proceeding is of some importance. While the writs of certiorari, mandamus and prohibition were abolished by the enactment of Article 78 of the Civil Practice Act (C.P.A. § 1283), the changes effected must be considered procedural and do not represent any substantial extension or contraction of the classic substantive principles underlying these ancient remedies. Toscano v . McGoldrick, 300 N.Y. 156, 161, 162, 89 N.E.2d 873, 875; Gimprich v . Board of Education, 306 N.Y. 401, 406, 407, 118 N.E.2d 578, 579, 580. The proceeding being one in the nature of a mandamus, the doctrine of exhaustion of administrative remedies does not apply, Leonard v. Horton, 278 App.Div. 62, 103 N.Y.S.2d 55, and the court must determine merely whether or not the respondent was 'specifically enjoined by law' (C.P.A. § 1284, subd. 3) to permit the inspection of records. Equitable principles will control issuance of the court's order. 'Administrative Adjudication in New York State', by Robert M. Benjamin (report to Honorable Herbert H. Lehman, Governor of the State of New York, 1942), page 351, et seq.; Coombs v. Edwards, 280 N.Y. 361, 364, 21 N.E.2d 353; Andresen v. Rice, 277 N.Y. 271, 282, 14 N.E.2d 65, 70; People ex rel. Desiderio v. Conolly, 238 N.Y. 326, 332, 333, 144 N.E. 629, 630, 631.

A public body cannot be commanded to perform an act not authorized by the statute from which it derives its power (Wong v. Finkelstein, 299 N.Y. 205, 207, 86 N.E.2d 563, 564) or other law. Such a mandate will be found, if at all, in the Constitution of the State of New York, the statutes of New York, the authorized regulations, rulings or orders of the Commissioner of Education of the State of New York promulgated by him pursuant to a valid exercise of the powers delegated to him by the Legislature, or in the great body of the common law. In the absence of such a rule of law, mandamus will not lie, since a petitioner must establish a clear, legal right to the relief which he seeks (Pruzan v. Valentine, 282 N.Y. 498, 501, 27 N.E.2d 25) to compel performance of the alleged duty (Coombs v. Edwards, supra).

The Constitution is silent. Nothing is contained in either Article XI 'Education' or in Article I 'Bill of Rights', which specifically touches upon the problem. It may be noted in passing, however, that Article 1, Section 1, of the Constitution providing that 'No member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers' has been construed not as a grant or a source of rights, but as a shield against unwarranted interference with existing rights by any department of the government. People ex rel. Gow v. Bingham, 57 Misc. 66, 69, 107 N.Y.S. 1011, 1014; Fidler v. Murphey, 203 Misc. 51, 53, 113 N.Y.S.2d 388, 390.

We turn, then, to a consideration of the enactments of the State Legislature which might bear upon the problem presented. Although the Education Law of the State encompasses three volumes of McKinney's Consolidated Laws, and while Article 3, Part III, lodges in the Division of History and Public Records of the Education Department the ultimate power of supervision, care, custody and control of all public records of all public offices, there is no legislative pronouncement in this body of statutes either granting to or taking away from a parent the right to inspect the school records of his or her child.

The Legislature has in many other contexts seen fit on the one hand to define what constitutes 'public records' which are available to all persons for inspection (e. g., Education Law, § 144; Public Health Law, § 4174; General Municipal Law, § 35; Election Law, § 380; Judiciary Law, § 468; Civil Practice Act, §§ 382, 410, 414; or to persons or agencies having an interest (e. g., Public Officers Law, § 66-a; Domestic Relations Law, § 114; Tax Laws, §§ 211, 384, 437; Stock Corp.Law, § 50; Insurance Law, §§ 198, 370); and, on the other hand, to characterize certain other records as being confidential and not subject to inspection by the public or, indeed, by persons who might otherwise have a more particular interest in them (e. g., Banking Law, § 36, subd. 10; id., Section 41, subd. 2; Sanitary Code of the City of New York, Section 33 (see Matter of Bakers Mutual Insurance Company of New York, 301 N.Y. 21, 92 N.E.2d 49).

Section 51 of the General Municipal Law provides that

'All books of minutes, entry or account, and the books, bills, vouchers, checks, contracts or other papers connected with or used or filed in the office of, or with any officer, board or commission acting for or on behalf of any county, town, village or municipal corporation in this state are hereby declared to be public records, and shall be open, subject to reasonable regulations to be prescribed by the officer having the custody thereof, to the inspection of any taxpayer.' (Italics supplied.)

However, it has been specifically held that a school district is not a municipal corporation within the meaning of that section. Schnepel v. Board of Education, City of Rochester, 302 N.Y. 94, 96 N .E.2d 617.

The foregoing examples are by no means exhaustive of the legislative pronouncements both of New York State Legislature and of local municipal legislative bodies, but they are indicative of the broad underlying power of the Legislature to deal with the subject of records and their availability for inspection. Neither counsel nor the court has been able to discover any legislation dealing with the nature of the school records at issue here as being either 'public' on the one hand, or 'confidential' on the other, or of the right of a parent as distinguished from the public at large to inspect them.

We turn, then, to a consideration of the regulations, rulings and orders of the Commissioner of Education of the State of New York . There is little doubt that if the Commissioner has in fact regulated in this area, he is well within the powers delegated to him under Section 4 of Article 5 of the Constitution and Section 305 of the Education Law. As the Court of Appeals pointed out in Bullock v. Cooley, 225 N.Y. 566, 576-577, 122 N.E. 630, 633, the object of the statute (Education Law) '* * * is to make all matters pertaining to the general school system of the state within the authority and control of the department of education and to remove the same so far as practicable and possible from controversies in the courts' (emphasis supplied).

In determining whether the Commissioner has in fact regulated in this area, certain fundamentals must be recalled. First, the Commissioner of Education has power to enact regualtions. Such regulations are construed as quasi-legislative acts which are for the regulation of all future cases and for the guidance of all administrative officers whose acts are subordinate to the regulatory authority. See Hecht v. Monaghan, 307 N.Y. 461, 469, 121 N.E.2d 421, 424; Nash v. Brooks (No. 1), 251 App.Div. 616, 618, 297 N.Y.S. 853, 862. Such administrative regulations are to be distinguished from those pronouncements of an administrative officer which are quasi-judicial in character, and, therefore, only binding upon the particular parties litigant in whose case the officer made his decision.

Section 8 of Article IV of the Constitution of the State of New York requires that rules or regulations of state administrative officers and agencies be filed in the office of the ...