PIGOTT, J.
Petitioner New York State United Teachers (NYSUT) submitted requests under the Freedom of Information Law (FOIL) to the six respondent Charter Schools
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 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 A.D.3d 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]). 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
In Matter of Federation of N.Y. State Rifle & Pistol Clubs v New York City Police Dept. (73 N.Y.2d 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
Giving the term "fund-raising" its "natural and most obvious meaning" (Matter of Capital Newspapers, Div. of Hearst Corp. v Whalen, 69 N.Y.2d 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 are 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 N.Y.2d 567, 571 [1979]). If anything, "it is precisely because no governmental purpose is
The dissent notes the difference between Federation and 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) (c-1) (i)
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, 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
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.
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 N.Y.3d 454, 462 [2007] [internal 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 of City of Syracuse, 65 N.Y.2d 294, 296-297 [1985]). 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 § 87 [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]).
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 Officers Law § 87 [2] [b]). 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 commercial[
The majority, relying on Matter of Federation of N.Y. State Rifle & Pistol Clubs v New York City Police Dept. (73 N.Y.2d 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 564). 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 94). 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. at 96). Because the organization did not dispute that the purpose of its mailings was to solicit new members and thereby receive funding, we concluded that
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 [some 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 I, § 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 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
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, because such organizations may, at some future time, seek dues-paying 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 exemption. For these reasons, I respectfully dissent.
Order reversed, etc.