Applying the exemption from releasing documents and records to the public pursuant to a FOIL request Mulgrew v Board of Educ. of the City School Dist. of the City of New York, 2011 NY Slip Op 06328, Appellate Division, First Department Litigation involving demands for public documents or records pursuant to New York State's Freedom of Information Law [FOIL] may result should the custodian of the document[s] or record[s] claim that the records or documents sought are covered by a FOIL exemption and elects not to release them on that basis.* In this instance Michael Mulgrew asked the court to prohibit the New York City School District, the custodian of the records or documents involved, from releasing "Teacher Data Reports that disclose teachers' names." Essentially Mulgrew contended that if a record or document was "eligible for exemption" pursuant to FOIL, the custodian of the record or document could neither release it nor provide it to an individual or entity demanding it. While noting that "Public agency records are presumptively open for public inspection and copying," the Appellate Division focused on a collateral issue — the burden of demonstrating the withholding of such material in reliance of a "FOIL exemption." The court said that the party "seeking an exemption from disclosure has the burden of proving entitlement to the exemption (Public Officers Law §89[e]," and concluded that the same criteria controlling the custodian of the documents or records claiming a FOIL exemption as the basis for rejecting the FOIL request applied with respect to Mulgrew in his seeking to withhold the documents or records pursuant to a FOIL exemption. The Appellate Division concluded that Mulgrew, as the party claiming the exemption, failed to sustain this burden. Further, the court observed that the requested documents or reports did not fall under the exemption for personal privacy set out in Public Officers Law §87(2) (b). Even though "privacy interests" are implicated, the Appellate Division ruled that the release of the information did not fall within one of the six examples of an "unwarranted invasion of personal privacy" set forth in Public Officers Law §89(2)(b). Additionally, the court commented that "when balancing privacy interests at stake against the public interest in disclosure of the information. 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." * N.B. The basic concept underlying FOIL is that all government documents and records, other than those having access thereto specifically limited or prohibited by statute, are to be made available to the public upon request. The custodian of the records or documents requested may elect, but is not required, to withhold those items that are otherwise within the ambit of the several exemptions permitted by FOIL otherwise consistent with law. As to the release of public records specifically limited by statute, examples include Education Law §1127 [Confidentiality of records] and §33.13 of the Mental Hygiene Law [Clinical records, confidentiality].
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