Harbatkin v. New York City Department of Records and Information Services (Index No. 104933/09)

Amici Curiae brief filed on behalf of seven media companies, a literary and human rights organization and a media trade association

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This brief Amici Curiae is respectfully submitted in support of Petitioner-Appellant Lisa Harbatkin for reversal of the judgment below, which denied unrestricted public access to historic anti-Communist records maintained by the City of New York's Department of Records and Information Services under New York State's Freedom of Information Law (Article 6 of the N.Y. Public Officers Law 84-90 et seq.)(hereinafter "FOIL"). The denial was improperly made under the narrow, "unwarranted invasion of personal privacy" exemption to FOIL. N.Y. Public Officers Law 87(2)(b)(McKinney 2010).

Reporters, historians and citizens often seek government records under FOIL to uncover the details of past government practices and policies as a way to better understand and monitor how agencies use the powers with which they are entrusted. Unsurprisingly, such records may contain information about individuals, including deceased individuals, over which objections to disclosure may be raised. While as a matter of civil discourse, the memory of the deceased and the sensitivities of their surviving heirs are important considerations, it would be against the public interest to find an ever-expanding and unchecked privacy interest in government records that would effectively give surviving heirs the ability to control the historical record. Such a right by the government as well to invoke the privacy interests of the deceased and their surviving heirs would enable the government to expansively shield from the public critical records that would otherwise be available to journalists, scholars and citizens. The denial of these records will deprive the public of important and accurate histories and biographies and, more importantly, impair the public's ability to hold government accountable for its past waste, negligence and abuse.

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Reference Info:Appellate Brief | State, 2nd Circuit, New York | United States


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