New York high court issues mixed ruling over access to names of informants in decades-old Communist probe

The names of informants who were promised confidentiality by the government during the New York City Board of Education’s “Anti-Communist Investigations" more than half a century ago will remain secret, the Court of Appeals of New York ruled Tuesday.

The court held that historian Lisa Harbatkin, who filed suit against the New York Department of Records and Information Services, was however entitled to everything in interview transcripts except material that would identify informants who were promised confidentiality by the government in exchange for the names of other members of the Communist Party. This includes information relating to individuals who were named during interviews that the government previously refused to disclose.

“We find it unacceptable for the government to break that promise, even after all these years,” the court stated.

According to the court, the records generated by the investigation included about 1,100 interviews with teachers and other employees, all of whom were promised confidentiality.

Harbatkin sought disclosure under the New York Freedom of Information Law (FOIL) of unredacted transcripts of interviews conducted as part of an investigation to “ferret out alleged Communists and unrepentant former Communists in the New York City public and university system," according to court documents.

While FOIL requires government agencies to "make available for public inspection and copying of all records, there are a number of exceptions to the law, including one that denies access to records that "if disclosed would constitute an unwarranted invasion of personal privacy."

Harbatkin's parents were targets of the Anti-Communist Investigations and her mother was among those interviewed by the city officials. She was granted access to some records, but out of fear of invading the privacy of people identified in the files, the department adopted a rule requiring the “redaction of any names and other identifying information, unless the person in question, or his or her legal heirs or custodians, has agreed to disclosure."

Harbatkin was then offered access to unredacted files as long as she agreed not to publish names. She rejected the offer and filed a lawsuit against the department.

After lower courts denied her access to unredacted transcripts, Harbatkin brought the case to the New York Court of Appeals, which modified a lower court's order and permitted the government “to redact only the names and other identifying details relating to informants who were promised confidentiality” as opposed to all of the names mentioned in the transcripts.

The court found that “a right of privacy exists in the affairs of the dead.”

“We do not say that disclosure will be completely harmless to those named in the documents, if they are still alive, or to members of their families who care about their memories,” the court stated. "But the diminished claims of privacy must be weighed against the claims of history."

As to upholding the redaction of names of people, other than the people interviewed, the court said, "We conclude that today, more than half a century after the interviews took place, the disclosure of the deleted information would not be an unwarranted invasion of personal privacy."

Harbatkin’s attorney, Michael Grygiel, said the decision – to an extent – is “improvident."

“To the extent that promises of confidentiality made by government employees are sufficient to displace the government’s obligations under FOIL, the purpose of FOIL will be essentially diminished,” he said.

Grygiel said his client “emphatically disagrees with the ruling.”

“The decision says that the historical record stops here and it prevents teachers and historians from being able to contact relatives in order to gain a first-hand account and to gain insight into the impact [the investigations had] on families,” he said.

Related Reporters Committee resources:

· New York – Open Government Guide