A unanimous state appellate panel has ordered the New York City Department of Education to provide a court with records of an internal investigation into allegations by a retired teacher that his school failed to comply with the No Child Left Behind Act when procuring federal funding.

An Appellate Division, First Department, panel of Justices Angela Mazzarelli (See Profile), Richard Andrias (See Profile), Leland DeGrasse (See Profile), Rosalyn Richter (See Profile) and Darcel Clark (See Profile) yesterday reinstated the Article 78 proceeding the teacher filed to compel the DOE to turn over the records.

The case, Thomas v. New York City Department of Education, 113739/11, had been dismissed by Manhattan Supreme Court Justice Geoffrey Wright last April. But the First Department ruled that the DOE must turn over the records to the Supreme Court for in camera review to determine if they can be released without compromising anyone’s privacy.

The teacher, Michael Thomas, taught math at the Manhattan Center for Science and Mathematics, or MCSM, an East Harlem high school, until his retirement earlier this year.

In order to receive federal funding under the No Child Left Behind Act, schools identified as being in need of improvement must submit a "comprehensive education plan." The school submitted such a plan for the 2009-2010 school year, according to the First Department’s unsigned opinion.

Thomas complained about the plan to the DOE pursuant to an established procedure allowing teachers, parents and other interested parties to challenge school policies. He alleged that MCSM’s plan was not developed with the involvement of parents and that the plan did not address the needs of at-risk students as required by the act. He also alleged that federal funds were not used for their intended purpose.

The DOE referred the complaint to its Office of Special Investigations, which concluded that the complaint was unsubstantiated. Thomas then filed a Freedom of Information Law petition seeking the office’s record of its probe. The office refused the request, saying that releasing the records of an investigation into unsubstantiated complaints would invade the privacy of the school administrators involved.

Thomas then filed an Article 78 petition against the DOE seeking to compel it to grant his FOIL request. When Wright dismissed that request, Thomas appealed.

The First Department noted that the appeals procedure Thomas used to challenge the school’s plan explicitly contemplates FOIL requests, saying the DOE will maintain records of its investigations, which will be available to the public in accordance with FOIL.

The panel said the records in question are clearly of public interest, and are presumptively available.

"Issues involving the expenditure of education funds and the quality of education, and why a government agency determined that a complaint concerning a violation of federal law relating thereto is allegedly unsubstantiated, are of significant public interest," the court wrote.

The panel quoted an advisory opinion from the Committee on Open Government which held that the fact that charges were found to be unsubstantiated does not necessarily mean they should not be disclosed. A member of the media or public "may be interested not only in those cases in which charges have been substantiated, but also those in which the charges are found to have been without merit, perhaps as a means of attempting to ascertain more fully how DOE operates and carries out its official duties," the committee said in that opinion.

"This reasoning applies equally to petitioner’s FOIL request for OSI’s investigative report and related documents," the panel wrote. "As the Legislature declared in Public Officers Law §84, ‘[t]he people’s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality.’"

"Here, the underlying complaint pertains to MCSM’s administrators’ performance of their official duties when using and applying federal funds, and in constructing and implementing" the educational plan, the panel said. "Accordingly, this matter should be remanded to the article 78 court for an in camera inspection of the documents to determine if redaction could strike an appropriate balance between personal privacy and public interests and which material could be properly disclosed."

Paul Golden of Hagan, Coury & Associates, who represented Thomas on appeal, said in an email that his client is "extremely gratified that the appellate court reversed and remanded the case."

"The decision establishes an important precedent," Golden said. "The Office of Special Investigations—and other investigatory agencies—cannot create a blanket exemption for records relating to allegedly unsubstantiated allegations. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality. An appropriate balance must be struck between personal privacy and public interests."

Elizabeth Freedman, senior counsel in the city Law Department’s appeals division, said in a statement, "While finding that a blanket exemption for these investigative files is not warranted under the Freedom of Information Law," the court remanded for an in-camera inspection to determine whether redaction would "appropriately balance personal privacy and public policy interests, and whether the documents would be otherwise exempt from disclosure under FOIL’s intra- or inter-agency exemption."