NY Court Of Appeals Rules FOIL Disclosure Of Employee Names to Union Not Required
April 14, 2011
Designated Freedom of Information Law ("FOIL") officers in governmental agencies, such as school districts and municipalities, often have extensive experience responding to FOIL requests. Knowing that FOIL strongly favors the disclosure of agency records, they may overlook statutory exemptions to disclosure. But, a recent case decided by the New York State Court of Appeals, NYSUT v. Brighter Choice Charter School, shows that the exemptions are alive and well -- particularly when a union seeks personal information about unrepresented employees.
FOIL (Public Officers Law §87 et seq.) was created to ensure the public's right to agency records and imposes a broad standard of open disclosure. FOIL's goal is to help the public make informed choices with respect to the direction and scope of governmental activities. It is this purpose that guides the general rule that all records of an agency are presumptively available for public inspection and copying. Nonetheless, several statutory exemptions are set forth in Public Officers Law §87(2) that permit a responding agency to withhold requested records. To ensure the public has maximum access to government records, these statutory exemptions are narrowly interpreted and the agency invoking the exemption bears the burden of demonstrating that requested material fits squarely within the ambit of the exemption.
In NYSUT v. Brighter Choice, a group of charter schools objected to disclosure of certain information about their employees requested by New York State United Teachers ("NYSUT"). In 2007, NYSUT submitted FOIL requests to Brighter Choice and five other Charter Schools in the Albany area. The request sought extensive information about the teachers and instructors, including their names and home addresses. The Charter Schools provided title and salary information, but objected to the request for the names and home addresses of its employees. NYSUT eventually dropped its request for home addresses. This left only the Charter School's denial of the union's request for the full names of the employees in dispute.
The Charter Schools objected to disclosing employees' names on the ground that the record, if disclosed, would constitute an unwarranted invasion of personal privacy. See Public Officers Law §87(2)(b). FOIL provides a list of eight (8) categories of exemptions that are per se unwarranted invasions of personal privacy. One disclosure that constitutes a per se unwarranted invasion of personal privacy is a list of names and addresses, if the list would be used for solicitation or fund-raising purposes.
Attorneys for the Charter Schools argued that this exemption to disclosure had been properly invoked, and that it permitted the Charter Schools to consider NYSUT's organizational purpose and the nature and format of the information NYSUT sought. The Charter Schools argued they could reasonably infer that NYSUT sought the names of employees for the purpose of soliciting new members and increasing the size of its organization.
In a 4-3 decision, the Court of Appeals agreed, holding: “It appears ... 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.”
In upholding the application of the exemption, the Court of Appeals stressed that its decision did little to undercut the purposes of FOIL. The Court found that disclosure of employees' names to NYSUT: “would do nothing to further the policies of FOIL, which are to assist the public in formulating intelligent, informed choices with respect to both the direction and scope of governmental activities. If anything, it is precisely because no governmental purpose is served by public disclosure of this information that section 87(2)(b)'s privacy exemption falls squarely within FOIL's statutory scheme.”
Moving Forward
If a school district or municipality receives a FOIL request seeking a list of the names or home addresses of its employees, the solicitation or fund-raising purposes exemption should be considered. If the FOIL officer can infer from the organizational purpose of the requesting party that the information is being sought to solicit the employees, the names and home addresses may be withheld. Not all requests from the same entity must be treated similarly. For example, disclosure of names and addresses should be made to a newspaper editorial department that submits a FOIL request in preparation for an opinion piece. In contrast, an agency may withhold a list of names and addresses from a newspaper circulation department that submits a FOIL request, as such could be reasonably inferred to have been made for solicitation purposes. The NYSUT v. Brighter Choice decision establishes that an agency that is aware that a FOIL request has been submitted for solicitation or fund-raising purposes is on firm ground should it choose to withhold a list of names or home addresses.
