Copyright © 2012 Lisa Harbatkin
Well, to start with, all three court levels in New York, topped off by the Court of Appeals decision in my case calling on New York City’s Municipal Archives to fully open the Anti-Communist Series records in its Board of Education holdings. News coverage reflected the decisive indecisiveness inherent in the opinion: Court grants partial access… Historian can’t access…Court orders release of names…Etc.
The Court of Appeals decision opened all records except those with the names of informers and of teachers promised confidentiality. But the court’s outright refusal to deal with the First Amendment issue, and its FOIA holding, essentially falling for the manipulative “privacy” promise made to the teachers, backed away from the key issues at stake.
Now, admittedly, I’m a First Amendment junkie. And a FOIA junkie. But you don’t have to be either one to take offense at the different versions of the form the Archives has been requiring researchers to sign before they can gain full access to Series 591.
Apparently current just prior to oral argument in the Court of Appeals, the latest version required those requesting full access to the Anti-Communist Series to pretty much agree to prior restraint, and threatens legal action in case of a violation. You can imagine the impact that could have on students and academics toiling away in those piles of archival paper.
Towards the end of the oral argument in the case (Matter of Harbatkin vs. New York City Department of Records and Information Services), one of the judges asked the city’s lawyer if she would withhold the name of the informant who told General Washington about Benedict Arnold. She said yes.