Copyright © 2012 Lisa Harbatkin
…to make the point that government agencies holding important historical records shouldn’t be allowed to violate the First Amendment by inventing contrived reasons to keep them secret. The records at issue are the New York Board of Education McCarthy-era Anti-Communist Series investigation files. The government agency involved is the city’s Municipal Archives.
In an earlier post (https://snoopsandsecrets.com/2012/08/19/whos-afraid-of-the-first-amendment/), I noted that New York’s three court levels had refused to deal with the First Amendment issue raised in my case, filed back in 2009, calling for the Municipal Archives to fully open the Anti-Communist Series records.
The state’s highest court, the Court of Appeals, issued a confusing opinion which nevertheless did open more, probably most, of the records under New York’s Freedom of Information Law (FOIL). Specifically, the court ruled that all records except those of teachers promised confidentiality should be open.* At this posting, though, the Municipal Archives has apparently not understood that and is apparently not complying with the CoA ruling.
The Supreme Court hears perhaps 1 percent of the cases appealed to it, so its refusal to grant certiorari on the First Amendment question raised by my appeal was not exactly surprising. But the denial represents a loss on two fronts: the First Amendment issue and the refusal of New York’s courts to address it, plus just the simple point that it’s way past time for government files from this difficult period to be fully open. (Oh – and that goes for FBI files too – another agency that’s been really annoying on the open records front. Although in some ways less annoying than the Municipal Archives.) Fifty to 70 years after the McCarthy years, in the middle of more crackdowns on civil liberties, we (the people) should be able to do our own investigations into why and how our government goes on these mindless rampages every few decades or so.
The First Amendment question centered on the Municipal Archives’ requirement that requesters asking to see the full range of the records should agree to prior restraint on what they could say and write. Specifically, the archives requires them to sign its Form D, which has gone through a few versions. The current version:
I agree that I will not record, copy, disseminate or publish in any form any names or other
identifying information that I obtain from the restricted materials, concerning those school
personnel who were interviewed relating to alleged support of or association with the
Communist Party, and who received a promise and/or assurance of confidentiality. This
confidentiality agreement is being made pursuant to the New York State Court of Appeals’
ruling in Harbatkin v. New York City Department of Records and Information Services et a!.,
decided on June 5, 2012.
Form D also cautions (warns?) :
Researchers are cautioned that violation of the terms of the agreement set out below may result
in possible legal action against them and the organization, if any, that they represent.
Think about your average professor or grad student or citizen confronting those words. A wee bit threatening, no?
Archives, and archivists, are supposed to make the past available, not hide it. Would be nice if the Municipal Archives got that point. They claim they’re protecting the privacy of the 1,000-plus teachers investigated by the Board of Education back in the 1940s-1960s. They’re not protecting the privacy of these teachers – they’re denying them their voices.
Court briefs and decisions are posted at http://www.dreamersandfighters.com/current.aspx#court.
* The so-called “confidentiality promise” was manipulated by the investigators to increase pressure on the teachers questioned to cooperate. More on this in a future post.