Freedom of Information Law

May 3, 2023 — PEF’s Civil Service Enforcement/Research Department is on a mission to identify and address barriers to the promotion of minority members across the state workforce. To do that, PEF needs access to hard facts. 

A recent court victory brings the union closer to that goal. 

In February 2022, PEF submitted a Freedom of Information Law (FOIL) request to the state Department of Civil Service (DCS), requesting the ethnic/racial breakdown of the state workforce from 2010 to 2022, sorted by agency and jurisdictional class (competitive, non-competitive, exempt, and labor). 

In response, the state provided a spreadsheet of the ethnic/racial breakdown of employees, sorted by agency, but declined to provide information sorted by jurisdictional class, citing their belief the data, when combined with other publicly available information, could result in identification of individual employees and invasion of their personal privacy. 

PEF appealed and was denied again on the same grounds. The union commenced an Article 78 proceeding Oct. 7, 2022, and ultimately the Albany County Supreme Court found that the possible impingement of personal privacy was outweighed by the benefit of disclosure to the public. PEF was represented in this litigation by PEF Associate Counsel Jenifer Wharton. 

“[I]n balancing the competing interests between governmental transparency and personal privacy protection, petitioners (PEF) have established that the need to maximize transparency in order to expose discriminatory practices regarding the filling of various jurisdictional classes tips the scales in their favor,” the judge wrote in her opinion. “The right of the public to know of governmental operations and to inspect public records is fundamental to the workings of a democratic society.” 

The ruling requires the state to furnish the information within 30 days, although the state can file an appeal. 

“Identifying concerning racial or ethnic discrimination trends should come before the potential of identifying individual employees,” said President Wayne Spence. “The Freedom of Information Law is rooted in the need for people to be able to obtain information concerning the day-to-day functioning of state and local governments to protect our right to make informed decisions and expose waste, negligence, abuse, and discrimination.   

We are pleased the judge agreed with our position and we look forward to continuing in our efforts to combat racial injustice and discrimination,” Spence said. 

The court also found the DCS’s actions “arbitrary and capricious,” paving the way for PEF to seek an award for attorneys’ fees and litigation costs.