LaRocca v. Board of Education of the Jericho Union Free School District

—In a proceeding pursuant to CPLR article 78 to review a determination of Robert Manheimer, dated March 9, 1993, which confirmed a determination of the Jericho Union Free School District, dated February 12, 1993, denying the petitioner’s application to obtain a copy of a settlement agreement, the appeal is from a judgment of the Supreme Court, Nassau County (Hart, J.), entered September 13, 1993, which dismissed the proceeding.

Ordered that the judgment is modified, on the law, by deleting therefrom the provision which dismissed the proceeding in its entirety and substituting therefor a provision granting the petition to the extent of directing the release of a redacted copy of the settlement agreement; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for release to the petitioner of a redacted copy of the settlement agreement.

In November 1992 written disciplinary charges were filed against Dr. Marc Horowitz pursuant to Education Law § 3020-a. Dr. Horowitz is employed by the Jericho Union Free School District (hereinafter the School District) as a principal and is a tenured employee. Thereafter, the Board of Education of the Jericho Union Free School District (hereinafter the Board of Education) determined that probable cause existed to support the disciplinary charges brought against Dr. Horowitz.

In December 1992 the Board of Education delegated to Dr. Robert Manheimer, the School District’s Superintendent of Schools, the authority to negotiate a settlement which would dispose of the charges against Dr. Horowitz. The charges against Dr. Horowitz were "disposed of by negotiation and settled by an Agreement duly executed by [Dr. Manheimer] and [Dr. Horowitz] on December 14, 1992” (hereinafter the settlement agreement). The Board of Education then adopted a resolution withdrawing, without prejudice, the charges against Dr. Horowitz and directing the School District’s attorney to advise the New York State Department of Education that the charges were withdrawn.

The petitioner Anthony LaRocca, Vice-President of the Jericho Teachers Association, which represents teachers employed in the school supervised by Dr. Horowitz, requested "a copy of the Board [of Education] resolution regarding the negotiated disposition and a copy of the accepted agreement between Dr. Horowitz, [Dr. Manheimer] and the Board of Education”. LaRocca’s request was denied because disclosure of the agreement "would constitute an unwarranted invasion of personal privacy” and "[t]he request relates to intra-agency or inter-agency materials which the School District is not required to disclose”. LaRocca appealed the School District’s determination to Dr. Manheimer. He subsequently affirmed the School District’s determination.

LaRocca then commenced the instant CPLR article 78 proceeding, seeking disclosure of the settlement agreement under Public Officers Law article 6, commonly known as the Freedom of Information Law (hereinafter FOIL). He argued that FOIL makes the records of public agencies presumptively accessible, and that the settlement agreement did not fall within any of the recognized exceptions. The School District, as well as Dr. Horowitz, opposed the petition on the same basis as had previously been relied upon in denying LaRocca’s initial request. The court denied the petition and dismissed the proceeding, finding, inter alia, that disclosure of the settlement agreement was exempt under FOIL because the document sought was an employment record, disclosure of which would be an unwarranted invasion of privacy. It also found that disclosure of the settlement agreement would violate the legislative intent of Education Law § 3020-a in providing tenured educators with the option of having confidential disciplinary proceedings.

It is well settled that FOIL imposes a broad duty of disclosure on government agencies (see, Public Officers Law § 84; Matter of Fink v Lefkowitz, 47 NY2d 567). All agency records are presumptively available for public inspection and copying, unless they fall within 1 of 10 categories of exemptions which permit agencies to withhold certain records (Public Officers Law § 87 [2]; Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, 79-80; Matter of Hanig v State of New York Dept. of Motor Vehicles, 79 NY2d 106, 109). The Court of Appeals has repeatedly stated that "FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government” (Matter of Capital Newspapers v Whalen, 69 NY2d 246, 252; Matter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488, 492; Matter of Russo v Nassau County Community Coll., 81 NY2d 690, 697).

However, expressly exempted from mandatory disclosure are records that "if disclosed would constitute an unwarranted invasion of * * * privacy” (Public Officers Law § 87 [2] [b]), including but not limited to "disclosure of employment, medical or credit histories or personal references of applicants for employment” (Public Officers Law § 89 [2] [b] [i]\ Further, although it is clear that a record is not considered an "employment history” merely because it records facts concerning employment (see, Matter of Capital Newspapers Div. v Burns, 67 NY2d 562, 570), the term "employment history” for purposes of FOIL exemptions is not defined in the statute, nor well interpreted by case law. However, its companion term "medical history” has been defined as "information that one would reasonably expect to be included as a relevant and material part of a proper medical history” (Matter of Hanig v State of New York Dept. of Motor Vehicles, 168 AD2d 884, affd 79 NY2d 106, supra). The Court of Appeals has approved this definition, stating that it "capture[d] the essence of the exemption in that it encompasses the very sort of detail about personal medical condition that would ordinarily and reasonably be regarded as intimate, private information” (Matter of Hanig v State of New York Dept. of Motor Vehicles, 79 NY2d 106, 112, supra).

Having examined the settlement agreement, we find that the entire document does not constitute an "employment history” as defined by FOIL (see, Matter of Hanig v State of New York Dept. of Motor Vehicles, supra) and it is therefore presumptively available for public inspection (see, Public Officers Law § 87 [2]; Matter of Farhman & Sons v New York City Health & Hosps. Corp., supra, 62 NY2d 75). Moreover, as a matter of public policy, the Board of Education cannot bargain away the public’s right to access to public records (see, Board of Educ. v Areman, 41 NY2d 527). Thus, to the extent that the settlement agreement, or any part thereof, purports to deny the public access to it in its entirety, such a provision is unenforceable as against the public interest.

However, having examined the settlement agreement in camera, we find that the release of that portion of the agreement which contains references to charges which were denied and/or not admitted by Horowitz or which contain the names of any teachers, would constitute an unwarranted invasion of privacy as defined by Public Officers Law § 87 (2). Therefore, the agreement must be redacted prior to its release to the petitioner. In the interest of judicial economy, we have redacted it, and the matter is remitted to the Supreme Court, Nassau County, to release copies of the redacted agreement to the petitoner.

We have examined the respondents’ remaining contentions and find them to be without merit. Rosenblatt, J. P., Miller and Florio, JJ., concur.