Mulgrew v. Board of Education
928 N.Y.S.2d 701
N.Y. App. Div.
2011
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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, Appellant, v Board of Education of the City School District of the City of New York et al., Respondents. Dow Jones & Company, Inc., et al., Intervenors-Respondents.

Appellate Division of the Supreme Court of New York, First Department

928 NYS2d 701

[Prior Case History: 31 Misc 3d 296.]

Supreme Court improperly reviewed respondents’ determination to release the requested reports under the “arbitrary and capricious” standard set forth in CPLR 7803 (3). The court should have determined whether respondents’ determination “was affected by an error of law” (CPLR 7803 [3]). In any event, the matter need not be remanded since respondents properly determined that the requested reports should be released under FOIL (cf. ).

Public agency records, like the ones at issue here, are presumptively open for public inspection and copying, and the party seeking an exemption from disclosure has the burden of proving entitlement to the exemption (Public Officers Law § 89 [5] [e]; see , ). Petitioner, as the party claiming the exemption, failed to sustain that burden. Although the materials sought are, in fact, intra-agency materials under Public Officers Law § 87 (2) (g), they are nonetheless subject to disclosure as “statistical or factual tabulations or data” under section 87 (2) (g) (i) (see ). “The mere fact that some of the data might be an estimate or a recommendation does not convert it into an expression of opinion” subject to a FOIL exemption (; see also ).

The requested reports also do not fall under the exemption for personal privacy set forth in Public Officers Law § 87 (2) (b). Although privacy interests are implicated by the type of information sought to be redacted, the release of the information does not fall within one of the six examples of an “unwarranted invasion of personal privacy” set forth in Public Officers Law § 89 (2) (b) (see ). Further, when balancing the privacy interests at stake against the public interest in disclosure of the information (see ), we conclude that the requested reports should be disclosed. Indeed, the reports concern information of a type that is of compelling interest to the public, namely, the proficiency of public employees in the performance of their job duties (see ).

We have considered the parties’ remaining contentions and find them unavailing. Concur—Tom, J.P., Saxe, Acosta and Abdus-Salaam, JJ.