89 Misc. 2d 705 | N.Y. Sup. Ct. | 1976
In this CPLR article 78 proceeding, one agency of State government asks the court to overrule the refusal of another such agency to provide certain information to the former upon the ground that such refusal contravened
The petitioner here complains that the respondents would not permit the inspection of: (1) the disposition of each complaint received by respondent commissioner since the effective date of the said law concerning the private schools and private business schools which may not operate unless licensed by the respondent commissioner pursuant to sections 5001 and 5002, respectively, of the Education Law as well as certain other related information; (2) drop-out rates and placement rates of the 50 such private schools which have the largest enrollment; (3) copies of field inspection reports described as "Bureau of Veterans Education Reports of Field Visits 404”; and (4) factual reports prepared by field supervisors resulting from on-site inspections of such private schools and private business schools since the effective date of the said Freedom of Information Law.
As a general defense, the respondents plead that, pursuant to section 553 (subd 3, par a) of the Executive Law, the executive director may conduct the investigations, research, studies and analyses therein mentioned only when so directed by the New York State Consumer Protection Board and that the said board has not so directed. However, it appears that, at its meeting of September 14, 1972, the said board by broad general language delegated to its executive director the power and duty to perform any of the acts described in said section 553 (subd 3, pars a-d [inclusive]) of the Executive Law without any further specific authorization and unless and until the board rescinds that broad delegation of its authority, the foregoing defense has no merit.
In support of her application, petitioner argues that all records in the possession of public officials are subject to inspection pursuant to the new Freedom of Information Law, unless specifically exempted by subdivisions 3 and 7 of section 88 of the Public Officers Law, and that the burden of proving the exemption is upon him who asserts it. In partial support of that position, she points to the legislative declaration in section 85 of the Public Officers Law that "government is the public’s business and that the public * * * should have unimpaired access to the records of the government” and she argues that the nine categories of documents which subdivision 1 of section 88 of the Public Officers Law says shall be made available for public inspection and copying are only
Turning now to the exemptions contained in the statute, the respondents say that the applicable provisions are paragraphs a and e of subdivision 3 and paragraphs b, c and d of subdivision 7 of section 88 of the Public Officers Law. Said paragraphs a and e of subdivision 3 would apply only if the sought for information is not relevant or essential to the ordinary work of the agency. The ordinary work of this agency presumably includes receiving complaints concerning licensees, tabulating or receiving tabulations of the said dropout and placement rates and inspecting the physical facilities of licensed schools and preparing reports thereof. Furthermore, the respondents’ ordinary work must include decisions concerning what action, if any, should be taken thereon. Merely because the agency concludes that the information it receives should not then or thereafter be acted on does not make that information "irrelevant to the work of the agency”. Accordingly, said paragraphs a and e of subdivision 3 are not applicable to this litigation.
As for the exemption contained in paragraph b of subdivision 7, such is applicable here only if, among other things, the
As for the said paragraph d of subdivision 7, such obviously has no relevancy to the drop-out and placement rate category, but for the reasons which follow, such may have relevancy to the inspection report and complaint category.
Subdivision 4 of section 5003 of the Education Law authorizes the respondent commissioner to take disciplinary action against licensees for "good cause” and subdivision 9 of the last-cited statute says that the Attorney-General or any local prosecuting officer, at the request of the respondent commissioner, may bring enforcement proceedings in any court of competent jurisdiction. Furthermore, subdivision 8 of the last-cited statute makes any willful violation of the provisions of article 101 of the Education Law a class B misdemeanor, and, therefore, it is conceivable that some of the inspection report or complaint information sought by this petitioner may be exempt from disclosure pursuant to section 88 (subd 7, par d) of the Public Officers Law. Accordingly, the judgment to be entered hereon should include a provision authorizing the respondents to withhold any information concerning these matters which would otherwise be discoverable, if such information is part of any investigatory file which the commissioner established for the purpose of considering whether or not enforcement proceedings, pursuant to said subdivision 9 of section 5003 of the Education Law, should be instituted, or for the purpose of actually instituting such proceedings, against a particular licensee, provided the respondents specify to the petitioner that such information is being withheld for that purpose. The said judgment should further provide that, if the
Except as hereinabove noted, the prayer of the petition will be granted.
(On reargument, November 17, 1976)
In a proceeding to review the refusal of respondents to permit an inspection by the petitioner of certain records which are in the formers’ custody, the respondents move "for an order permitting the renewal and reargument of the above-entitled proceeding and of respondents’ motion for judgment therein”.
In the original decision, the court indicated that respondents’ summary claims did not adequately demonstrate the applicability of the exemptions contained in the applicable statute (Public Officers Law, §88, subd 7). Upon the instant motion, that defect has not been remedied and the respondents continue to rely upon argumentative and conclusory recitations rather than demonstrating factually that the information sought is, indeed, exempt under the statute.
Respondents say that, if the court is not satisfied from the instant submissions that the exemptions are applicable, it should conduct an in camera inspection of all of the documents which are the target of this proceeding and the papers suggest that there may be several hundred in that category.
In Matter of Zuckerman v New York State Bd. of Parole (53 AD2d 405, 408), the Appellate Division of this department stated that "[wjhile an agency should be accorded an opportunity to prove by means other than an in camera inspection that they are entitled to an exemption, if they fail to provide such detailed information an in camera inspection of the documents sought should be performed [citations omitted]”. On the other hand, in Cirale v 80 Pine St. Corp. (35 NY2d 113), which was decided before the effective date of the Freedom of Information Law (Public Officers Law, art 6) and was concerned with common-law privilege as opposed to the said statutory exemptions, the court expressed the view that only rarely would in camera inspection be necessary.
Upon this motion, respondents continue to claim that the personal privacy exemption is applicable, but such a claim is not warranted when, as here, the information sought is of a commercial or business nature. Furthermore, the court does not accept the proposition that the release of drop-out and placement rates of the subject schools permits an unfair advantage to competitors within the meaning of the statute.
The motion for reargument or renewal will be granted and upon such reargument or renewal, the original determination will be adhered to.