ALBANY - Autopsies are the only public document for which access is limited to a subset of society, but Gov. Andrew M. Cuomo and state legislative leaders are trying to walk a tricky legal line in trying to create similar limitations on who can have teacher evaluations, experts said Wednesday.
"The whole issue raises some very serious questions about whether it is possible or even permissible to carve out certain public records and make them available only to a subset of the public," said Michael Grygiel, an Albany lawyer and chairman of the state bar association's Committee on Media Law.
Even if lawmakers devise a way to allow parents alone to see the records -- the same way only the next of kin has a right to an autopsy -- there's seemingly no way they can prohibit parents from disseminating them to other parents or PTA groups, or from posting them on the Internet, said Robert Freeman, head of the state Committee on Open Government and a specialist on the state's Freedom of Information Law.
"If it's made available to a parent, I can't imagine a mechanism that could prevent a parent from sharing it as he or she sees fit," Freeman said. "I don't see how, in this electronic age, you can stop a parent from starting a blog or sharing it publicly on the Internet."
The debate focuses on whether access can or should be limited to parents of students. Some officials note that evaluations of police and fire personnel aren't available publicly and want teachers treated the same. Assemb. Sandra Galef (D-Ossining) has said she'll introduce legislation that not only keeps teachers' performance records private, but also makes it illegal for school districts to make them available to anyone.
The governor says the parent's right to know trumps teacher privacy, but once "you get beyond parents, it's less clear." Unions are fighting disclosure -- but so far courts have ruled the evaluations public.
Cuomo himself seems to have yet to reach a conclusion. "I understand the initial, knee-jerk, 'reveal everything, just put it on a website' view," Cuomo said in a radio interview Wednesday. "But this is a relatively new topic: What should the disclosure policy be for public employees?"
The governor indicated no solution was at hand, saying, "It's a conversation we'll have over the next few months."
Cuomo said the notion of making it a criminal offense for parents to disseminate the teacher evaluations was "absurd," but speculated whether there was a way to supply the "data in a way that doesn't reveal the names."
Senate Majority Leader Dean Skelos (R-Rockville Centre) has said he wants no restrictions on the public release of teachers' evaluations. But Assembly Speaker Sheldon Silver (D-Manhattan) said last week that he favored a "method by which parents can know how a particular teacher or a particular grade performs" and added "that doesn't mean that some newspaper can have a picture of a teacher with their evaluation."
Setting such a restriction might prove problematic.
Even with an autopsy, a relative, after receiving it, can disseminate it without limitation.
Grygiel said trying to ban parents from sharing teacher evaluation records "would run afoul of the [U.S.] constitutional prohibition on prior restraint."
"Once a citizen has information that was lawfully obtained, the government can prohibit dissemination only in instances of the highest concern -- such as national security," Grygiel said. "Otherwise, any prohibition is presumptively invalid under the First Amendment."