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Tuesday, August 23, 2016

NEWS ALERT: Francesco Portelos Loses His Federal Case, Jury Says His Speech Was Not Protected and Gives No Damages

Francesco Portelos

 The jury at the trial in Federal Court saw, I guess, Francesco's very bad performance on the stand (in my opinion) and that he was a disruptive employee who did not have protected speech.
Victor Jordan, Lydia Howrilka, Lucio Celli, Francesco Portelos, Jonathan Hinesley, Al Leon, unknown
Francesco's attorney Bryan Glass evidently did not ask that Francesco's union activity/speech be protected.

Francesco Portelos: "A Troublemaking, Combative, and Disgruntled Employee", DOE Dismissed as Defendant
OP-ED: Why Cyberstalker Francesco Portelos and His Bully Mob, UFT Solidarity, Failed

Betsy Combier
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, The NYC Public Voice

Jury rules against 'rubber room' teacher in suit vs. principal

silive.com
-- The principal won.
A seven-person jury in Brooklyn Federal Court on Tuesday ruled against "rubber room" teacher Francesco Portelos in his civil case against former principal Linda Hill and former District 31 Superintendent Erminia Claudio.
After a seven-day trial, the jury ruled Portelos' superiors did not retaliate against him for participating in protected free speech under the first amendment and awarded no damages. 
Portelos, a Rosebank resident and former tech teacher at Dreyfus Intermediate School (I.S. 49) in Stapleton, had claimed in a lawsuit then-principal Hill had him exiled to the "rubber room" for exposing Hill's overtime abuses.
The judge had instructed the jury to determine if "speech was the motivating factor" in carrying out an adverse employment action against the plaintiff.
In 2012, Portelos was removed from I.S. 49 and reassigned to a building in Far Rockaway, Queens, where he worked in a storage room -- the rubber room -- in a basement that had two windows. There, he started a blog -- protectportelos --  where he documented his experience of doing absolutely nothing for one year while collecting his hefty teaching salary.

'Rubber room' teacher vows an appeal after 'disappointing' jury verdict

LINK
BROOKLYN, N.Y. — After four years, the fight still isn't over.
Even though a seven-member jury ruled against "rubber room" teacher Francesco Portelos, the former tech teacher at I.S. 49 is confident his attorneys will file an appeal.
"My concern as a public school parent is that this decision will prevent teachers from speaking up because there's nothing to protect them," Portelos said outside Brooklyn Federal Court Tuesday afternoon. "I hope this doesn't bring a chilling effect to potential whistleblowers. We just have to be smarter about the way we expose the wrongdoing."
Portelos, a former tech teacher at Dreyfus Intermediate School (I.S. 49) in Stapleton, was suing then-Principal Linda Hill and then-Superintendent Erminia Claudio, claiming he was retaliated against for exposing Hill's overtime abuses. Hill was found responsible for the double-dipping by billing for simultaneous after- school programs, and paid an $801 fine.
But after sitting through a six-day trial and deliberating for more than four hours, the jury sided with the former administrators over the whistleblowing teacher.
When the judge asked the foreman if the panel believed the defendants retaliated against the plaintiff, he said, "No."
A quiet hush went over the courtroom, and the group of approximately 10 teachers who attended the trial regularly were stunned and speechless.
"What a shame," one said, leaving the courtroom.
"What happened?" another wondered.
Portelos, who exposed Hill's double-dipping practices through an anonymous FOIL (Freedom of Information Law) request to obtain Hill's timecards in January 2012, believes the jury was handcuffed by the limited evidence they were allowed to consider.
During the deliberations, the jury had a question about the timeline, and  specifically asked the judge to provide the testimony about when Portleos made the timecards complaint. According to the testimony given to the panel, it was March 2012.
"They were pigeon-holed us as to what we can bring in front of them," said Portelos, who is still a full-time teacher that rotates around various Staten Island schools. "We were more credible. The evidence presented was not accurate."
Portelos, a Rosebank resident, feels the jury should've been able to hear about the FOIL request and his complaint about how the principal mishandled a $7 million budget in December, 2011.
"I'm disappointed," he said. "Despite the decision, there is little regret."
Portelos said the jury foreman stopped to talk to him on his way out of the parking garage. The foreman told him the panel came in Tuesday morning ready to rule in his favor, but the court timeline and evidence forced them to rule against him, Portleos said.
"It gives me a little bit of closure," he said.
Two jurors, including the foreman, declined to comment after the proceeding.
In April 2012, Portelos was removed from I.S. 49 and reassigned to a building in Far Rockaway, Queens, where he worked in a storage room -- the rubber room -- in a basement that had two windows. There, he started a blog -- protectportelos --  where he documented his experience of doing absolutely nothing for one year while collecting his hefty teaching salary.
The move garnered media attention, and eventually Portelos was facing 38 termination charges from the DOE. But an arbitrator dismissed all but 11 of the charges, fined him $10,000 and ordered that he return to a classroom.

Thursday, August 18, 2016

Francesco Portelos: "A Troublemaking, Combative, and Disgruntled Employee", DOE Dismissed as Defendant

Victor Jordan, Lydia Howrilka, Lucio Celli, Francesco Portelos, Jonathan Hinesley, Al Leon, unknown


UPDATE: Judge Hall took the New York City Department of Education out of the Portelos Complaint on Friday, so the DOE is out of any consideration by the jury:

DOE dropped as a defendant in 'rubber room' teacher case


I stopped by the trial of Francesco Portelos in Federal Court (the Eastern District, 225 Cadman Plaza E, Room 425N; Judge Darcy Hall) on tuesday after my client's 3020-a ended early, and saw Francesco testify. He cried three times, because now that he is an ATR he cannot do per session, which he used to have 5 times every week and now he has to go straight home, and his family is suffering. Hmmmm..

Wait - maybe I heard this testimony wrong, but I dont think so.

Francesco was asked what charges were sustained by Arbitrator Felice Busto after his 3020-a. He could not remember hardly any of them. I dont understand why Bryan would ask that question, but I'm not a lawyer, so ....read my post on my website Parentadvocates.org, the charges which were sustained are all there:

EDITORIAL: Cyberstalker Francesco Portelos and His Blame Game Must Be Stopped

Francesco is no whistleblower:

If you go to the UFT website, you will see that there is a page called "Whistleblower Protection".

"Whistleblower Protection

The city whistleblower law prohibits any “adverse personnel action” (dismissal, suspension, discipline, “U” rating, denial of assignment without justification) against you in retaliation for you making a report about the conduct of a DOE officer or employee that you believe presents “substantial and specific risk of harm to the health, safety or educational welfare of a child” in a DOE school to any of the following: the public advocate, Department of Investigations (DOI), the city comptroller, the head of OSI, a city council member, the mayor, the chancellor, or a deputy chancellor. The law does not cover you from any retaliation that results from a report you make to anyone other than those listed above, including your principal, assistant principal or chairman.
If you believe you have been retaliated against for “blowing the whistle,” you should report it to the DOI and your UFT borough office. DOI has authorized the head of SCI to investigate all allegations of retaliation. If SCI finds that there has been retaliation, it will inform the chancellor and make recommendations for remedying the situation. If the chancellor does not act on the recommendations, the case will be forwarded to the mayor. The case will also become part of the DOE’s annual report to the city council.
There are also other laws that protect certain whistleblowers in specific situations. Any conduct you believe should be reported should also be reported to your district representative so that the union can help you."

As I was told by a knowledgeable source in 2000, "There is always retaliation"
Therefore, if you see something and want to say something, come up with a plan, first.

Here are some suggestions:

If you see an employee abusing a child in any physical way - hitting, pushing, kicking, touching in a sexual manner, or any other obviously potentially criminal act - report the employee to the police, after writing an exact statement of what you saw, with time/date/place/people involved. Better yet, try to get a video or at least an audio recording of what happened. Take this to the police and file a police report. Call the parent. Send an email to the DOI and the UFT. Then let the principal know (unless the abuse is being done by the principal or AP). 


Watching the trial on tuesday, what was most shocking to me was the terrible performance of  Francesco's Attorney Bryan Glass. He could not ask a question in the right way, and the Judge often had to do sidebars with the attorneys. It looks to me like Bryan was not listening to her.

As many readers of this blog know, I have been attacked, defamed and harassed by Francesco and his cult followers Lucio Celli, Christina Vickers, Jonathan Hinseley, Lydia Howrilka, Danielle Kushner, Victor Jordan, Bob Provenza - so what, you say? Many readers might say, "...that's your problem, too bad. Glad its not me."
Lucio Celli

What I'm saying is, it's me now, even though all I did was ask Francesco to take down a video where I was called a "homophobe", but it could be you next time. In my opinion, revenge and retaliation is what Francesco, Lucio, and the others in their crew are all about, folks. Francesco wants you to do what he wants, or else.

Francesco Portelos and His "Victim Complex"

See Lucio Celli's emails copied in a post on this blog, where he is after Judge Blassman (PERB ALJ), former General Counsel Courtenaye Jackson-Chase, NYSUT Attorney Kathy Battle, UFT Rep. Mary Atkinson, and of course, me:
Lucio Celli emails
More Lucio Celli emails
Email to the EEOC from Lucio's NYC DOE email account
Lucio Celli's Amended Complaint filed behind the back of his attorney

As I posted in my article about former DOE Attorney Ian Nikol, Courtenaye Jackson-Chase helped me get the settlement for Yolanda Walker, my fearless teacher friend, and for her help I am forever grateful. Yolanda died October 11, 2015. Courtenaye also helped me get former Voyages Principal Joan Klingsberg's job back after Joan was terminated. Why she did not tell the truth to Lucio, I dont know. But her lie gave Lucio and Francesco the right to start their cyberbullying and harassment of Courtenaye, as you can see from the emails sent out posted above. These emails are only a small portion of the emails which were sent by these two and their crew.
Jonathan Hinesley, on the left

For the record, I am not working with either Jonathan Tand or Steve Morelli on Lucio's case, and never have done so.

 Francesco Portelos attacked through anonymous emails every principal in town on his defamatory website DTOE.com.  His mission is to threaten any principal who gets an anonymous negative comment:

"“Issues at Your School” – An email no 
NYC principal wants to receive
Turning the tables. That’s what progressive caucus UFT Solidarity began to do when members contact us that they are under warrantless attack. For almost a decade NYC DOE administrators had unfettered power to destroy careers. Problem with a teacher who grieves contractual violations or want to get rid of a pesky chapter leader? No problem. All a principal had to do was start building a paper trail of trumped up charges and fraudulent observations. Sometimes a simple phone call to the DOE’s Office of Special Investigation (OSI) would do the trick. The teacher would be removed for months or years without knowing why they were removed. That’s if they were tenured. If not, the would be discontinued and out in a few days. The union? The UFT has been absent in thwarting attacks against members and sometimes is actually involved in helping the members get railroaded See [UPDATED] Bizarre Behavior Coming from Queens UFT Office.
So what is a member under attack to do? Well, luckily we live in the age of technology and have come up with some tools to fight back. This is how it works, and it does work. (Not all the time but it’s getting better.)
At UFT Solidarity, we have collaborated on an email we send to administrators who are bullying and harassing our members. The email is written in a way where we let the administrator know that the members in their school and not sitting ducks and will have support. We let the administrator know that we are educating their staff on how to fight back and encourage them to support and not continue their attacks. What we hope, or assume, happens is that that the administrator sends it to their superintendent and DOE lawyers. In turn we hope that the superintendent and lawyers respond to the administrator with something like this:
“Oh no. We have seen these before and it can get ugly. Expect there to be Freedom of Information Law requests on your records such as time cards, financial records and emails. They even obtain video surveillance footage. Your staff is probably already secretly recording you. Expect stories of you to be added to social media with comments being added by staff, students and parents. You will be added to their Administrator’s in Need of Improvement (ANOI) list online if you have not been already.uftsolidarity.org/anoi. Expect them to launch investigations on anything you have done that violates a chancellor’s regulation, policy or law. Investigators will be coming. Finally, expect a group of their members and your staff and students, albeit small, to be outside your school with flyers and signs. If you have not bought a Costco size bottle of Tylenol, then we suggest you do that.”
At least that is what we hope the lawyers tell the administrator and they second guess their future actions.
The Email:
——-
Principal X,


Unfortunately your school has come to the attention of ourteacher advocacy group. Apparently there are allegations of harassment and unwarranted attacks on educators at your school. As you could imagine, an atmosphere of workplace bullying and harassment is not conducive to a nurturing learning environment for our students.
Just as a courtesy, we are letting you know that we are educating your staff members with information on how to defend their careers so they may continue to instruct and nurture students to their fullest potential. Those tools can be in the form of legally audio recording, using the Freedom of Information Law to obtain information necessary to prove their allegations against you, organizing rallies and creating various social media articles.
Perhaps your best recourse would be to speak with the superintendent, your senior field counsel and Borough Support Center representative, to figure out ways to support educators rather than treading on their careers.
Thank you.
Sincerely,
UFT Solidarity
“Building a stronger union.”
If you don’t believe me, then you can perform an internet search on many of the administrators we have listed on our ANOI list. You can ask Principal Micheaux and AP Martinez of the Bronx. Ask Principal Adonna McFarland or Principal Namita Dwarka. Our list is over 100. Namita Dwarka and her school has been on the cover of the NY Post the last three days. The brave people responsible are UFT Solidarity members and supporters who have been following our playbook.
Also see our campaign page as our team and platform are growing. For this reason I have not been able to blog much here. My time has been spent building and organizing with great educator activists and enjoying time with my family. My sleeves are rolled up and we are ready to increase our work this September. Our ATR Alliance group is also growing and becoming more knowledgeable. A similar letter is being drafted for ATR Field Supervisors.
As we delve deeper into the UFT 2016 campaign season, expect more push back in more schools. We will bring positive change one way or another. Improving the classroom settings will improve the classroom learning.
UFT Solidarity - "Building a Stronger Union."
Follow me on Twitter: https://twitter.com/mrportelos


What is alarming about this? Francesco does not care if the derogatory anonymous comments are true or not true.

 This group of public school teachers believe that anything they say about a person is ok, and they will lie about anyone. This is unbecoming a teacher and they must be held accountable. In my opinion, all of the people associated with Francesco should be charged with 3020-a if they are tenured, or discontinued if not tenured, like Lydia Howrilka.

After I put up my blog post

"Francesco Portelos and NY State Tenure Law" I received a call from a friend of both Francesco and I, who told me that Francesco asked her to ask me to take my post down, because he never said anything that was on my blog. 


Not true!!!! He has directly, recklessly, maliciously and without any right, lied and defamed me. He has sent my picture out and told people I am a thief, a homophobe, and a liar.


Then, on August 9, 2016, a day after his jury was picked, Francesco sent a friend of mine and blogger the following:

From: Francesco Portelos <mrportelos@gmail.com>
To: Fidget Teach
Sent: Tue, Aug 9, 2016 7:40 am
Subject: Laurie

Hi Laurie,
     I hope all is well. I'm asking nicely that you remove this defamatory and unnecessary blog post from your site please. Thank you.
Francesco A. Portelos
Educator
www.EducatorFightsBack.org
UFT Solidarity Caucus
www.UFTsolidarity.org
"The foundation of every state is the education of its youth." -
 Greek Philosopher Diogenes

She refused. She wrote her opinion of Francesco, as she can, and should.

Here are my other posts about Francesco Portelos, and comments:

Francesco Portelos






Francesco Portelos said...
Hopefully everyone can see through your lie filled rants. I know most do. Did you tell everyone how Randi Weingarten gave you her cell number before you launched your smear campaign?
Anonymous said...
I am a former parent at IS 49. When my child was at the school my wife and I heard all the gory details about the Principal and we want to say that we were more concerned about the teacher turned terrorist Francesco Portelos than we were about the finances of Hill. Parents were frightened to speak about Portelos and we all despised him. He used his computer to break into any confidential record of anyone. Including the children with IEP. Ms. Hill was on to him way before he went after her. And the way that Portelos went after the chapter leader Mr. Candia was scary - I mean, getting Candia's girlfriend in trouble soley to retaliate against him? Portelos jeopardized the safety of everyone in the school. The names and faces of each and every teacher who follows this guy should be memorized so that they all are removed from the classrooms. Please.
Anonymous said...
Portelos is a very dangerous .
Anonymous said...
Why would anyone want Portelos in their school, or any of his gang? Watch out for them.
Anonymous said...
There is no limit to Francesco's wrecklessness.
He inflates numbers about supporters.
He tenaciously pesters people for political support.
He divulges email confidences if things go the slightest bit sour.
He shares screen captures of text message dialogues.
This guy should not be active with other teachers as his actions put their confidentiality at risk.
The notion of this guy having any position in the UFT is very unsettling. Therefore, people should put Francesco Portelos' UFT Solidarity out of their minds.

Below is the report on Francesco's cross-examination yesterday, August 17, 2016.

Betsy Combier
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, The NYC Public Voice

Under cross examination, 'rubber room' teacher's behavior questioned

By Mira Wassef | mwassef@siadvance.com 
Email the author | Follow on Twitter 
LINK
on August 17, 2016 at 8:28 PM, updated August 17, 2016 at 8:48 PM
BROOKLYN, N.Y. -- The Staten Island teacher exiled to a "rubber room" was portrayed as a troublemaking, combative and disgruntled employee who defied orders from his superior, the defense argued during trial proceedings Wednesday in Brooklyn Federal Court.
During cross-examination, defense attorney Jessica Giambrone aggressively questioned Francesco Portelos' character, credibility and behavior during his tumultuous tenure at the Dreyfus Intermediate School in Stapleton.
Portelos, a Rosebank resident, is suing the Department of Education and then-Principal Linda Hill for allegedly violating his civil rights, claiming they made up disciplinary charges as retaliation for him exposing Hill's overtime abuses.
First, the defense claims, Portelos secretly recorded conversations and an altercation with two members of the school staff. In January 2012, Giambrone said, Portelos got into a heated verbal disagreement with another teacher and the two exchanged profanities. But, without the teacher knowing, Portelos had recorded the roughly 17-minute altercation.
He also recorded the subsequent meeting with Hill and the other two staffers. Hill, now retired, cited him for using the word "F---" during the disagreement.
Portelos' response, Giambrone claimed, was, "I wouldn't use f--- as a noun."
He testified that he was the only one disciplined for the altercation.
He then posted about 60 seconds of the fight on the Internet, the defense lawyersaid.
In April 2012, Giambrone argued the plaintiff recorded a female assistant principal allegedly inappropriately touching a child in the school. 
"I took the video because there was a history of her improperly touching a child," Portelos testified.
He then published certain portions of that video on YouTube and the Staten Island Advance website during the investigation into those allegations, she claimed.
"I digitally altered the girl in the video so you couldn't tell who she was and altered her voice," Portelos admitted on the stand.  "I didn't know how to submit video (to DOE) because I was in hot water, so someone submitted it for me. I resubmitted it again, but still the assistant principal wasn't reassigned."
The defense also contends that Portelos repeatedly ignored Hill's order to refrain from emailing the school staff without prior permission. He would send emailssaying, "my name has been dragged in the mud" and whoever made complaints about him should retract them and he may "show mercy."
But, Portelos contends he was permitted to email union members at I.S. 49.
After the plaintiff ignored Hill's request, she disabled his access to the school's website, dreyfus49.com, the defense said. The former tech teacher, Giambrone said, then disabled Hill's administrative access to the site.
Portelos had the rights to the site and Hill had asked him to turn it over to her, but he refused.
After consulting with a lawyer, Portelos said he was concerned about liability and privacy issues.
Hill then ordered him to shut it down, and he did.
In 2012, Portelos was removed from I.S. 49 and reassigned, but still remained involved in school affairs.
Giambrone revealed that Portelos bought the domain rights to another school website that had previously expired, and forwarded the traffic from that site to a new website he created, which was named after the street where Dreyfus is located.
Portelos was sent to a Far Rockaway campus, where he worked in a storage room -- the rubber room -- in the basement that had two windows. There, he started a blog where he documented his experience doing absolutely nothing for one year while collecting his teaching salary.
Portelos faced 38 termination charges from the DOE, but an arbitrator dismissed most of them, fined him $10,000 and ordered he return to the classroom.
The trial resumes Thursday.

Sunday, August 14, 2016

The NY POST Sues The New York City Department of Education For Freedom of Information (FOIL) Violations

Joe Baranello
See also Parentadvocates.org

Congratulations to the New York POST (NYPOST) newspaper, and reporters Susan Edelman, Aaron Short, and Yoav Gonen, for filing a petition against the NYC DOE for FOI Law violations! As an Editor, writer, and a person who files countless FOI requests of the Department I know how the NYC DOE illegally denies access to documents, videos, letters and other information they simply do not want the public to see. The disdain of the NYC DOE for the law is shocking. 

See my FOIL request denials:

The Second "Who Are You Kidding Award" Goes To Dennis Walcott





Editor Betsy Combier
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, The NYC Public Voice
           
http://www.parentadvocates.org/graphics/spacer.gif
http://www.parentadvocates.org/graphics/spacer.gif
The NY POST Sues The New York City Department of Education For Freedom of Information (FOIL) Violations

Congratulations to the New York POST (NYPOST) newspaper, and reporters Susan Edelman, Aaron Short, and Yoav Gonen, for filing a petition against the NYC DOE for FOI Law violations!

As an Editor, writer, and a person who files countless FOI requests of the Department I know how the NYC DOE illegally denies access to documents, videos, letters and other information they simply do not want the public to see. The disdain of the NYC DOE for the law is shocking.

Betsy Combier
Editor, Parentadvocates.org
President, ADVOCATZ/Theater Kids, Inc.
betsy.combier@gmail.com

Here is the Petition:

PLEASE TAKE NOTICE that, upon the annexed Verified Petition and Complaint, the exhibits attached thereto, the Affidavit of Jeremy A. Chase, and the memorandum of law in support of the Petition, Petitioners NYP Holdings, Inc., Susan Edelman, Aaron Short, and Yoav Gonen will move this Court at the New York State Supreme Court, New York County Courthouse, located at 60 Centre Street, New York, New York 10007, in the Motions Submission Part, Room 130, at 9:30 a.m. on September 16, 2016, or as soon thereafter as counsel may be heard for an Order and Judgment pursuant to Article 78 of the Civil Practice Law and Rules and Section 3001 of the Civil Practice Law and Rules for the relief demanded in the annexed Verified Petition and Complaint.

PLEASE TAKE FURTHER NOTICE that, pursuant to N.Y.C.P.L.R. § 7804,
Respondents’ answer, if any, must be served upon the undersigned by September 12, 2016 and
Petitioners’ reply, if any will be served on September 15, 2016.

Petitioners-Plaintiffs NYP Holdings, Inc. (“NYP”), Susan Edelman, Aaron Short, and Yoav Gonen (collectively, “Petitioners”), for their verified petition for judgment pursuant to Article 78 of the New York Civil Practice Law and Rules, and their complaint seeking a declaratory judgment pursuant to N.Y.C.P.L.R. § 3001, by and through their undersigned counsel, respectfully allege as follows:

PRELIMINARY STATEMENT

1. This hybrid Article 78 petition and Complaint against the New York City Department of Education and Carmen Fariña, as Chancellor of the New York City Department of Education (collectively “Respondents” or “DOE”) arises out of Respondents’ repeated failure to determine whether to grant or deny access to information Petitioners have requested as is required by the Freedom of Information Law (“FOIL”). Instead, Respondents have engaged in a pattern and practice of unilaterally granting themselves repeated extensions of time to respond to FOIL requests ad infinitum, thereby flouting their duty under FOIL to make their records available to the public.
2. FOIL requires that within five business days of the receipt of a request for records, an agency must “make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied.” N.Y. Pub. Off. Law § 89(3)(a) (emphasis added).
Joe Baranello
3. Since September 2014, Petitioners have submitted a number of FOIL requests to DOE. In each case, DOE Central Records Access Officer & Agency Attorney Joseph A. Baranello has acknowledged receipt of the request by letter and stated that “a response is currently anticipated by [x date].”
4. Not once, however, have Respondents granted or denied the request by the anticipated date, and instead Mr. Baranello has sent the following form letter, again and again:
This letter concerns the above-referenced Freedom of Information Law (FOIL) request. Pursuant to section VI.B of Chancellor’s Regulation D-110, due to the volume and complexity of requests we receive and process, and to determine whether any records or portions thereof will be subject to redactions permitted under Public Officers Law §87(2), additional time is required to respond substantively to your request. Accordingly, a response is currently anticipated by [x date].

(hereinafter the “Form Delay Letter”).

5. This Form Delay Letter offers no legally-cognizable explanation for DOE’s unilateral delays in determining whether it will grant or deny a request. Nor does the Form Delay Letter offer an approximate date that is “reasonable under the circumstances of the request.” N.Y. Pub. Off. Law § 89(3)(a). Instead, Respondents completely ignore the circumstances of the request and, without any consideration of how long the determination of whether to grant or deny a particular request should reasonably take or the particular factors that may affect the time for a decision, kick the proverbial can down the road to the Petitioners’ and the public’s detriment.
6. Petitioners are left in limbo – their requests neither granted nor denied – with the only certainty being the receipt of another monthly Form Delay Letter from Respondents gifting themselves more time and abdicating their statutory duty to make their records available to the public. All the while, the Petitioners and the public are left in the dark about the workings and failings of their government.
7. Recognizing that Respondents refuse to even determine whether Petitioners’ requests should be granted or denied – let alone provide Petitioners with the requested documents – in May 2016 Petitioners construed Respondents’ excessive delays in responding as constructive denials of their requests and filed administrative appeals of the constructive denials with the DOE (Ms. Edelman and Mr. Short on May 18, 2016 and Mr. Gonen on May 24, 2016). At the time of filing their administrative appeals, Petitioners were collectively waiting for Respondents to grant or deny twelve separate FOIL requests – five (5) for Ms. Edelman, four (4) for Mr. Short, and three (3) for Mr. Gonen. Petitioners had received between three (3) and fourteen (14) Form Delay Letters for each request, and had been waiting for between four (4) and twenty (20) months for responses to each request. As of the date of this Petition, Petitioners have been awaiting a “yes” or a “no” on each of the remaining ten outstanding requests for between more than six (6) months and more than twenty (20) months.
8. In decisions dated June 6, 2015 and June 8, 2015, the First Deputy General Counsel of the DOE Judy Nathan, on behalf of Respondents, rejected Petitioners’ administrative appeals, finding that the requests had not been constructively denied and were not ripe for review. Ms. Nathan reasoned that because Respondents continued to send monthly extension letters with new “approximate date[s]” for the agency to respond, and because the Chancellor’s Regulation D-110(VIII)(A) considers a request constructively denied only when the request is neither granted nor denied “within the time limits set forth . . . in the acknowledgment letter or
any extension letter(s) . . . ,” no constructive denial could occur so long as DOE continued to send Form Delay Letters.
9. The Chancellor’s Regulation which provides for unlimited “extension letter(s)” is an invalid usurpation of legislative authority, as it is inconsistent with the language and the legislative purpose of Public Officers Law § 89(3)(a) and the Committee on Open Government’s implementing regulations (the “Implementing Regulations”), neither of which authorizes multiple unilateral extensions of time to grant or deny the request.
10. If this provision of the Chancellor’s Regulation is allowed to stand – or if Respondents’ actions here in taking repeated unilateral pro forma extensions of their time to grant or deny a request is condoned as “reasonable under the circumstances of the request(s)” – the entire FOIL would be rendered meaningless and agencies could avoid (or in DOE’s case, continue to avoid) providing public records merely by sending the same pat letter month after month – and avoid any administrative or judicial review by claiming their extensions are not constructive denials.
11. Having now exhausted their administrative remedies, Petitioners now seek (1) a declaration pursuant to CPLR § 3001 that Chancellor’s Regulation D-110(VIII)(A) is invalid and contrary to FOIL and the Implementing Regulations, and that the DOE’s practice of granting itself serial unilateral extensions of time to respond to FOIL requests is unlawful and tantamount to a constructive denial; and (2) an Order pursuant to Article 78 of the New York Civil Practice Law and Rules, directing the DOE to produce all disclosable records responsive to Petitioners’ ten outstanding requests1 within twenty (20) days of the Court’s order; and (3) award Petitioners their the costs and fees, together with such other and further relief the Court deems just and proper.

PARTIES

12. Petitioner NYP Holdings, Inc. is a corporation organized and existing under the laws of Delaware with its principal place of business at 1211 Avenue of the Americas, New York, New York, 10036-8790. NYP Holdings, Inc. is the publisher of the New York Post (the “Post”), the oldest, continuously published daily newspaper in the United States, having first been published by Alexander Hamilton in 1801. Today, the Post is sold in many states in the United States, both at newsstands, by subscription, and digitally via the Internet.
13. Petitioner Susan Edelman is an investigative reporter for the New York Post Sunday edition who covers a variety of news beats including education news. She has reported extensively on education spending, teacher pay, misconduct in education, and a host of other topics of significant public interest.
14. Petitioner Aaron Short is an investigative reporter for the New York Post Sunday edition covering government. Between January 2014 and June 2015 he covered education and state government for the Post’s daily edition. In both roles, he has reported on various issues of significant public interest relating to education and the New York City Department of Education.
15. Petitioner Yoav Gonen is an investigative reporter and the City Hall Bureau Chief for the New York Post. In this role, he has reported extensively on various issues of significant public interest relating to public education and the New York City Department of Education.


footnote1: Since Ms. Edelman and Mr. Short filed their administrative appeal, perhaps fearing this action, Respondents have granted in part two of the nine FOIL requests at issue on their appeal – F#11,479 on May 27, 2016 and F#10,586 on June 17, 2016. The Requests, however, are relevant to Petitioners’ request for declaratory relief under CPLR § 3001.

16. Respondent the New York City Department of Education consists of the Board of Education of the City School District of the City of New York, also known as the Panel for Educational Policy, established by Educ. Law § 2590(b), the Chancellor, and other school employees.2 DOE is an “agency” within the meaning of Public Off. Law § 86(3). Its principal office is located at 52 Chambers Street, Room 308, New York, NY 10007.
17. Respondent Carmen Fariña is the Chancellor of the DOE and is charged with administration of New York City’s public schools, including the provision of academic standards, student placement, school funding, and teacher recruitment. Her principal office is located at 52 Chambers Street, New York, NY 10007.

JURISDICTION & VENUE

18. This Court has jurisdiction pursuant to C.P.L.R. § 7801 et seq. to review the actions by bodies or officers who have failed to perform a duty enjoined on them by law.
19. The court also has jurisdiction pursuant to C.P.L.R. § 3001 to render declaratory relief.
20. Venue properly lies in New York County pursuant to CPLR § 506(b) and CPLR § 7804(b) because that is where DOE’s principal office is located and because it is within the judicial district wherein DOE made the determinations petitioned against and complained of and where it refused to perform the duties specifically enjoined upon it by law.

STATEMENT OF FACTS

I. THE FIRST REQUEST (F#10,586)

21. On September 23, 2014, Mr. Short requested the following records from the DOE


footnote 2: See DOE, Bylaws of the Panel for Educational Policy of the Department of Education of the City School District of the City of New York, http://schools.nyc.gov/AboutUs/leadership/PEP/bylaws/default.htm (last visited Jun. 28, 2016).
(the “First Request”): a list of public school teachers, sorted by school, who have taken between 11 and 20 days off from school in the 2013-2014 school year, and a list of teachers who have taken 20 or more days off. A true and correct copy of the First Request is attached hereto as Exhibit 1.
22. DOE is required to maintain this record. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to employee absences or accruals, employee’s time records covering leave, absences, hours worked and scheduling, vacation schedules, report of absence and request for leave without pay).
23. On September 30, 2014, Mr. Baranello sent a letter to Mr. Short acknowledging receipt of his request and stating that DOE anticipated providing a response by October 29, 2014. A true and correct copy of the September 30, 2014 letter is attached hereto as Exhibit 2.
24. On October 29, 2014, however, instead of receiving a determination of whether the request was granted or denied, Mr. Short received a Form Delay Letter from Mr. Baranello stating that “a response is currently anticipated by December 1, 2014.” Over the next several months, Mr. Baranello sent a series of identical Form Delay Letters to Mr. Short granting DOE unilateral extensions of its time to grant or deny the request to the following new anticipated dates:
• February 2, 2015,

• March 31, 2015,

• April 28, 2015,

• May 27, 2015,

• June 24, 2015,

• September 18, 2015,

• October 19, 2015,

• November 17, 2015,

• December 17, 2015,

• January 21, 2016,

• February 19, 2016,

• March 18, 2016, and

• April 15, 2016.

True and correct copies of the Form Delay Letters related to the First Request are attached hereto as Exhibit 3.
25. At the time Mr. Short and Ms. Edelman filed their administrative appeal on May 18, 2016, the April 15, 2016 deadline had passed and Mr. Short had received neither a substantive response nor even another Form Delay Letter from Respondent.
26. On June 17, 2016, a month after the appeal was filed, more than two months after the most recent “approximate date” for DOE to grant or deny the request had passed, and twenty
one (21) months after Mr. Short filed his initial request, Petitioners received a response from Respondent, granting in part the First Request. Mr. Short was provided with a single excel spreadsheet with the name of every teacher redacted. The amount of time it took to review and redact this single document – Respondents’ stated reason for the delay other than the volume of other requests – took only as long as it would take to type the word “REDACTED” and paste it into two columns of a spreadsheet. A true and correct copy of the Response to the First Request is attached hereto as Exhibit 4.
27. Because DOE took so long to respond to the First Request, the information sought in the request for the 2013-2014 school year is now stale. As a result, Petitioners did not appeal this partial denial.

II. THE SECOND REQUEST (F#10,764)

28. On November 20, 2014, Mr. Short requested the following records from the DOE (the “Second Request”): a list or spreadsheet of arrests of DOE employees and the type of crime or non-criminal incident for which they were charged from January 1, 2010 to November 20, 2014. A true and correct copy of the Second Request is attached hereto as Exhibit 5.
29. DOE is required to maintain this record. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to investigative records and disciplinary proceedings, personnel-related records of reports of allegations of child abuse against school employees and volunteers in an “educational setting”).
30. On December 1, 2014, Mr. Baranello sent a letter to Mr. Short acknowledging receipt of his request and stating that DOE anticipated providing a response by December 31, 2014. A true and correct copy of the December 1, 2014 letter is attached hereto as Exhibit 6.
31. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Mr. Short a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• February 2, 2015,

• March 31, 2015,

• April 28, 2015,

• May 27, 2015,

• June 24, 2015,

• August 20, 2015,

• September 18, 2015,

• October 19, 2015,

• November 17, 2015,

• December 17, 2015,

• January 21, 2016,

• February 19, 2016,

• March 18, 2016, and

• April 15, 2016.

32. At the time Mr. Short and Ms. Edelman filed their administrative appeal on May 18, 2016, the April 15, 2016 deadline had passed and Mr. Short had received neither a substantive response nor even another Form Delay Letter from Respondent.
33. Then, after Mr. Short and Ms. Edelman filed their administrative appeal and almost three months after the most recent “anticipated date” for DOE to respond had passed, DOE sent a fifteenth (15) Form Delay Letter granting itself yet another unilateral extension until
• July 12, 2016.

True and correct copies of the Form Delay Letters related to the Second Request are attached hereto as Exhibit 7.
34. As of the date of this Petition, July 12, 2016 came and went with no response.

This request has been outstanding for more than twenty (20) months.

III. THE THIRD AND FOURTH REQUESTS (F #11,061, F#11,068)

35. On March 4, 2015, Mr. Gonen requested the following records from the DOE (the “Third Request”): a copy of all e-mails sent and received by DOE Press Secretary Devora Kaye on March 3, 2015. A true and correct copy of the Third Request is attached hereto as Exhibit 8.
36. On March 6, 2015, Mr. Gonen requested the following records from the DOE (the “Fourth Request”): a copy of all e-mails sent and received by Ms. Kaye on March 2, 2015. A true and correct copy of the Fourth Request is attached hereto as Exhibit 9.
37. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records for which a FOIL request has been received).
38. On March 11, 2015, Mr. Baranello sent a letter to Mr. Gonen acknowledging receipt of the Third and Fourth Requests, and stating that DOE anticipated providing a response to both by April 7, 2015. A true and correct copy of the March 11, 2015 letter is attached hereto as Exhibit 10.
39. Instead of receiving a determination of whether the requests were granted or denied, Mr. Baranello sent Mr. Gonen a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the requests to the following new anticipated dates:
• May 5, 2015,

• June 3, 2015,

• July 1, 2015,

• July 30, 2015,

• August 27, 2015,

• September 25, 2015,

• October 26, 2015,

• December 28, 2015,

• January 26, 2015 [sic],

• February 26, 2016,

• March 25, 2016,

• April 22, 2016, and

• May 20, 2016.

40. After Mr. Gonen filed his administrative appeal and DOE denied it, DOE sent three additional Form Delay Letters for a total of sixteen (16) Form Delay Letters granting itself
further unilateral extensions until:

• June 20, 2016,

• July 19, 2016, and

• August 16, 2016.

True and correct copies of the Form Delay Letters related to the Fourth Request are attached hereto as Exhibit 11.
41. As of the date of this Petition, this request has been outstanding for more than seventeen (17) months.

IV. THE FIFTH REQUEST (F#11,115)

42. On March 17, 2015, Mr. Gonen requested the following records from the DOE (the “Fifth Request”): a breakdown of the reason for/method of departure for each of the 291 educators/staffers in the ATR (“Absent Teacher Reserve”) pool that Mayor de Blasio has said repeatedly have been “moved” out of the schools system since April 2014, including the teacher’s name, location of last teaching assignment, and reason for/method of departure, as well as copies of any related stipulations of settlement or expedited 3020-A hearing reports. A true and correct copy of the Fifth Request is attached hereto as Exhibit 12.
43. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records for which a FOIL request has been received, as well as records related to substitute teacher registries and terminations).
44. On March 13, 2015, four days prior to submitting the Fifth Request, Mr. Gonen e-mailed Jason Fink of the DOE’s Press Office asking him to provide the same list he later requested in the first part of the Fifth Request. On March 17, 2015, Mr. Fink contacted Mr. Gonen to tell him, “So apparently you have a FOIL request in that seems to cover this.” In response, Mr. Gonen wrote, “It’s true. That doesn’t preclude you from answering sooner. I’d cancel the foil if so.” A true and correct copy of this e-mail chain is attached hereto as Exhibit 13. On March 20, 2015, Mr. Fink sent Mr. Gonen an e-mail containing a chart of the ATR exits with minimal detail in response to Mr. Gonen’s earlier e-mail to the Press Office. This information was provided completely independent of the FOIL process. A true and correct copy of Mr. Fink’s e-mail is attached hereto as Exhibit 14.
45. On March 24, 2015, Mr. Baranello sent a letter to Mr. Gonen acknowledging receipt of his FOIL request, observing that a portion of the request had already been provided to Mr. Gonen, and stating that DOE anticipated providing a response to the remainder of the request by April 20, 2015. A true and correct copy of the March 24, 2015 letter is attached hereto as Exhibit 15.
46. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Mr. Gonen a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• May 18, 2015,

• June 16, 2015,

• July 15, 2015,

• August 12, 2015,

• September 10, 2015,

• October 8, 2015,

• December 9, 2015,

• January 12, 2016,

• March 10, 2016,3

• April 7, 2016,

• May 5, 2016, and

• June 3, 2016.

47. After Mr. Gonen filed his administrative appeal and DOE denied it, DOE sent three additional Form Delay Letters for a total of fifteen (15) Form Delay Letters granting itself further unilateral extensions until:

• July 1, 2016,

• August 1, 2016, and

• August 29, 2016.

True and correct copies of the Form Delay Letters and Mr. Gonen’s e-mail exchange with Mr. Mantell about delays related to the Fifth Request are attached hereto as Exhibit 16.
48. As of the date of this Petition, this request has been outstanding for just under seventeen (17) months.

V. THE SIXTH REQUEST (F#11,479)

49. On July 6, 2015, Ms. Edelman requested the following records from the DOE (the “Sixth Request”): records on the re-scoring of the Regents exams in New York City schools including all records of requests by New York City superintendents and other personnel to re- score the January 2015 Regents exams. A true and correct copy of the Sixth Request is attached hereto as Exhibit 17.

footnote 3: On February 22, 2016, well over a month after DOE’s most recent anticipated date of response (January 12, 2016) had passed, Mr. Gonen wrote to Will Mantell of the DOE press office who sends all FOIL responses on behalf of Mr. Baranello, and asked “hey Will, have you sent anything since this notice? I don’t see anything if you did,” to which Mr. Mantell responded, “Doesn’t look like it. I’ll look into it tmo.” This email exchange is included as part of Exhibit 16.

50. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to Regents exam test results).
51. On July 13, 2015, Mr. Baranello sent a letter to Ms. Edelman acknowledging receipt of her request and stating that DOE anticipated providing a response by August 10, 2015. A true and correct copy of the July 13, 2015 letter is attached hereto as Exhibit 18.
52. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Ms. Edelman a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• September 8, 2015,

• November 4, 2015,

• December 7, 2015,

• January 8, 2016,

• February 8, 2016,

• March 25, 2016, and

• May 20, 2016.

True and Correct copies of the Form Delay Letters related to the Sixth Request are attached hereto as Exhibit 19.
53. On May 27, 2016, a week after the most recent “anticipated date” for DOE to respond had passed, ten days after Mr. Short and Ms. Edelman filed their appeal, and more than ten (10) months after she filed her initial request, Ms. Edelman received a response from Respondent, granting in part her request. Ms. Edelman was provided with a single excel spreadsheet. The amount of time it took to review and redact this automatically generated
information – DOE’s stated reason for the delay other than the volume of other requests – took only as long as it would take to type the word “REDACTED” and paste it into three columns of a spreadsheet. A true and correct copy of the Response to the Sixth Request is attached hereto as Exhibit 20.
54. As with the First Request, because DOE took so long to respond to the Sixth Request, the information sought in the request is now stale. As a result, Petitioners did not appeal this partial denial.

VI. THE SEVENTH REQUEST (F#11,571)

55. On August 12, 2015, Ms. Edelman requested the following records from the DOE (the “Seventh Request”): copies of reports completed or finalized since January 1, 2014 by the Office of Special Investigation (OSI). A true and correct copy of the Seventh Request is attached hereto as Exhibit 21.
56. Among its various responsibilities, the OSI investigates allegations of improper and unlawful behavior, including corporal punishment, verbal abuse against students, and various other forms of misconduct in the DOE. The DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to child abuse or maltreatment reports and related records and complaints about use of corporal punishment against students).
57. On August 19, 2015, Mr. Baranello sent a letter to Ms. Edelman acknowledging receipt of her request and stating that DOE anticipated providing a response by September 17, 2015. A true and correct copy of the August 19, 2015 letter is attached hereto as Exhibit 22.
58. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Ms. Edelman a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:

• October 16, 2015,

• November 16, 2015,

• December 16, 2015,

• January 20, 2016,

• February 18, 2016,

• April 14, 2016,

• May 12, 2016, and

• June 10, 2016.

59. After Mr. Short and Ms. Edelman filed their administrative appeal and DOE denied it, DOE sent four additional Form Delay Letters for a total of twelve (12) Form Delay Letters granting itself further unilateral extensions until:

• July 11, 2016,

• July 25, 2016,

• August 8, 2016, and

• August 22, 2016.

True and correct copies of the Form Delay Letters related to the Sixth Request are attached hereto as Exhibit 23.
60. As of the date of this Petition, this request has been outstanding for just under twelve (12) months.

VII. THE EIGHTH REQUEST (F#11,677)

61. On October 2, 2015, Mr. Short requested the following records from the DOE (the “Eighth Request”): payroll records for Renewal School Superintendent Amy Horowitz and all staff who work with Ms. Horowitz on the Renewal School initiative for 2015, or for the 2014-2015 school year. A true and correct copy of the Eighth Request is attached hereto as Exhibit 24.
62. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of payroll records). Further, one of the few exceptions to the FOIL’s rule that agencies do not need to create records to respond to a FOIL request is that every agency is required to create “a record setting forth the name, public office address, title and salary of every officer or employee of the agency.” Pub. Off. Law. § 87(3)(b).
63. On October 9, 2015, Mr. Baranello sent a letter to Mr. Short acknowledging receipt of his request and stating that DOE anticipated providing a response by November 9, 2015. A true and correct copy of the October 9, 2014 letter is attached hereto as Exhibit 25.
64. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Mr. Short a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:

• December 10, 2015,

• February 11, 2016,

• April 8, 2016, and

• May 6, 2016.

65. At the time Mr. Short and Ms. Edelman filed their administrative appeal on May 18, 2016, the May 6, 2016 deadline had passed and Mr. Short had received neither a substantive response nor even another Form Delay Letter from Respondent.
66. Nevertheless, after Mr. Short and Ms. Edelman filed their administrative appeal and a month after the most recent “anticipated date” for DOE to respond had passed, DOE sent three additional Form Delay Letters for a total of seven (7) Form Delay Letters granting itself further unilateral extensions until:

• July 5, 2016,

• August 2, 2016, and

• August 30, 2016.

True and correct copies of the Form Delay Letters related to the Eighth Request are attached hereto as Exhibit 26.
67. As of the date of this Petition, this request has been outstanding for more than ten (10) months.

VIII. THE NINTH REQUEST (F#11,856)

68. On December 2, 2015, Ms. Edelman requested the following records from the DOE (the “Ninth Request”): records of disciplinary action involving school bus drivers and “matrons” or other such aides since December 1, 2014. A true and correct copy of the Ninth Request is attached hereto as Exhibit 27.
69. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to disciplinary proceedings).
70. On December 8, 2015, Mr. Baranello sent a letter to Ms. Edelman acknowledging receipt of her request and stating that DOE anticipated providing a response by January 11, 2016. A true and correct copy of the December 8, 2015 letter is attached hereto as Exhibit 28.
71. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Ms. Edelman a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:

• February 9, 2016,

• March 9, 2016,

• April 6, 2016,

• May 4, 2016, and

• June 2, 2016.

72. Then, after Mr. Short and Ms. Edelman filed their administrative appeal, DOE sent five additional Form Delay Letters for a total of ten (10) Form Delay Letters granting itself further unilateral extensions until:

• June 30, 2016,

• July 15, 2016,

• July 22, 2016,

• July 29, 2016, and

• August 12, 2016.

True and correct copies of the Form Delay Letters related to the Ninth Request are attached hereto as Exhibit 29.
73. As of the date of this Petition, this request has been outstanding for more than eight (8) months.

IX. THE TENTH REQUEST (F#11,858)

74. Also on December 2, 2015, Ms. Edelman requested the following records from the DOE (the “Tenth Request”): records detailing weapons found or confiscated in city schools in the 2013-2014 school year, the 2014-2015 school year, and the current school year. A true and correct copy of the Tenth Request is attached hereto as Exhibit 30.
75. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to disciplinary proceedings).
76. Ms. Edelman had previously requested and been provided with this exact information by DOE for prior year’s reporting. Recognizing that this data is readily available to Respondent, in an effort to expedite processing of her request, Ms. Edelman attached to her request the similar records DOE released to her in March 2012. A true and correct copy of the DOE’s Response to Ms. Edelman’s previous FOIL request and the two spreadsheets provided (one for each school year) are attached hereto as Exhibit 31.
77. On December 8, 2015, Mr. Baranello sent a letter to Ms. Edelman acknowledging receipt of her request and stating that DOE anticipated providing a response by January 11, 2016. A true and correct copy of the December 8, 2015 letter is attached hereto as Exhibit 32.
78. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Ms. Edelman a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:

• February 9, 2016,

• March 9, 2016,

• April 6, 2016,

• May 4, 2016, and

• June 2, 2016.

79. Then, after Mr. Short and Ms. Edelman filed their administrative appeal, DOE sent five additional Form Delay Letters for a total of ten (10) Form Delay Letters granting itself further unilateral extensions until:

• June 30, 2016,

• July 15, 2016,

• July 22, 2016,

• July 29, 2016, and

• August 12, 2016.

True and correct copies of the Form Delay Letters related to the Tenth Request are attached hereto as Exhibit 33.
80. As of the date of this Petition, this request has been outstanding for more than eight (8) months.

X. THE ELEVENTH REQUEST (F#11,894)

81. On December 16, 2015, Mr. Short requested the following records from the DOE (the “Eleventh Request”): attendance records for all DOE principals in the 2013-2014 school year, 2014-2015 school year, and in 2015 between September 9, 2015 and December 15, 2015. A true and correct copy of the Eleventh Request is attached hereto as Exhibit 34.
82. The DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to employee absences or accruals, employee’s time records covering leave, absences, hours worked and scheduling, vacation schedules, report of absence and request for leave without pay).
83. On December 22, 2015, Mr. Baranello sent a letter to Mr. Short acknowledging receipt of his request and stating that DOE anticipated providing a response by January 26, 2016. A true and correct copy of the December 22, 2015 letter is attached hereto as Exhibit 35.
84. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Mr. Short a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:

• March 23, 2016, and

• April 20, 2016.

85. At the time Mr. Short and Ms. Edelman filed their administrative appeal on May 18, 2016, the April 20, 2016 deadline had passed and Mr. Short had received neither a substantive response nor even another Form Delay Letter from Respondent.
86. Nevertheless, after Mr. Short and Ms. Edelman filed their administrative appeal and a month after the most recent “anticipated date” for DOE to respond had passed, DOE sent three additional Form Delay Letters for a total of five (5) Form Delay Letters, granting itself further unilateral extensions until

• June 16, 2016,

• July 15, 2016, and

• August 12, 2016.

True and correct copies of the Form Delay Letters related to the Eleventh Request are attached hereto as Exhibit 36.
87. As of the date of this Petition, this request has been outstanding for more than seven (7) months.

XI. THE TWELFTH REQUEST (F#12,015)

88. On January 25, 2016, Ms. Edelman requested the following records from the DOE (the “Twelfth Request”): records of all procurement card (P-card) expenses by DOE personnel since August 21, 2014. A true and correct copy of the Twelfth Request is attached hereto as Exhibit 37.
89. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating procurements of goods and services and credit card expenditures).
90. As with the Tenth Request, Ms. Edelman had previously requested and been provided with this exact information for the period from September 1, 2013 to August 21, 2014. Again, in an effort to expedite the processing of her request, Ms. Edelman attached to her request DOE’s response to her prior request. A true and correct copy of the DOE’s Response to Ms. Edelman’s previous FOIL request along with a pdf of the first 44 lines of the spreadsheet produced by DOE is attached hereto as Exhibit 38.
91. On January 28, 2016, Mr. Baranello sent a letter to Ms. Edelman acknowledging receipt of her request and stating that DOE anticipated providing a response by February 26, 2016. A true and correct copy of the January 28, 2016 letter is attached hereto as Exhibit 39.
92. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Ms. Edelman a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:

• March 25, 2015 [sic],

• April 22, 2015 [sic], and

• May 20, 2015 [sic].

93. Then, after Mr. Short and Ms. Edelman filed their administrative appeal, DOE sent six additional Form Delay Letters for a total of nine (9) Form Delay Letters granting itself further unilateral extensions until:

• June 20, 2015 [sic],

• July 19, 2016,

• July 26, 2016,

• August 2, 2016,

• August 8, 2016, and

• August 15, 2016.

True and correct copies of the Form Delay Letters are attached hereto as Exhibit 40.
94. As of the date of this Petition, this request has been outstanding for more than six (6) months.

XII. PETITIONERS’ EFFORTS TO GET DOE TO GRANT OR DENY THEIR REQUESTS

95. Over the course of this extended period of delay, Petitioners did not sit idly by.
96. On November 17, 2015, frustrated with DOE’s dilatory tactics, Ms. Edelman e-mailed Respondent, contesting its practice of sending multiple “form letters delaying compliance with no specific reason.” Specifically, she wrote, “You say the documents will be forthcoming the following month, but I have no confidence that you will send anything other than another form letter with another delay.” Ms. Edelman received no response to her e-mail. A true and correct copy of Ms. Edelman’s November 17, 2015 email is attached hereto as Exhibit 41.
97. Further, on both March 31, 2016 and April 14, 2016, counsel for the Post sent letters to DOE requesting that it respond to the Post’s requests and to inform it that the DOE pattern and practice of delays was unreasonable and contrary to law. In each of these letters, the Post stated that if the requested records were not provided in a timely fashion, the Post would have no choice but to consider DOE’s excessive and repeated delays a constructive denial. Neither Mr. Baranello nor anyone at DOE responded to the Post’s letters. A true and correct copy of the Post’s March 31, 2016 letter is attached hereto as Exhibit 42. A true and correct copy of the Post’s April 14, 2016 letter is attached hereto as Exhibit 43.

XIII. PETITIONERS’ ADMINISTRATIVE APPEALS OF THE CONSTRUCTIVE DENIALS OF THE TWELVE REQUESTS

98. As of May 2016, Petitioners had yet to receive a substantive response to any of the twelve FOIL requests that form the substance of this Petition.
99. Accordingly, on May 18, 2016, Ms. Edelman and Mr. Short timely submitted an administrative appeal of the constructive denials of the First, Second, Sixth, Seventh, Eighth Ninth, Tenth, Eleventh and Twelfth Requests. A true and correct copy of Mr. Short’s and Ms. Edelman’s May 18, 2016 Appeal is attached hereto as Exhibit 44.
100. By letter dated June 6, 2016 from DOE First Deputy General Counsel Judy Nathan, the DOE denied Mr. Short’s and Ms. Edelman’s administrative appeal out of hand. The DOE held that the Requests had not been constructively denied because “according to Chancellor’s Regulation D-110(VIII)(A), a request may be deemed constructively denied only where a requestor ‘is neither granted nor denied access to records within the time limits set forth above [in section V(VI)] or in the acknowledgment letter or any extension letter(s)…’ (emphasis added).” Further, DOE observed that Mr. Baranello had “properly determined that additional time was required” to respond because of “the total number of requests as well as the extensive and voluminous nature of some of the items requested” and that “review and redaction of the requested records . . . are time-consuming.”
101. Ms. Nathan also held that the Sixth Request was moot because on May 27, 2016, a week after the most recent “anticipated date” for DOE to respond had passed, and more than ten (10) months after she filed her initial request, Ms. Edelman received a response from Respondent, granting in part her request. Ms. Edelman was provided with a single excel spreadsheet. The amount of time it took to review and redact this automatically generated information – DOE’s stated reason for the delay other than the volume of other requests – took only as long as it would take to type the word “REDACTED” and paste it into three columns of a spreadsheet. See supra, Exhibit 20.
102. Although Ms. Nathan denied Mr. Short’s and Ms. Edelman’s appeal, she directed DOE to respond to their requests “as expeditiously as possible.” A true and correct copy of DOE’s June 6, 2016 Denial Letter is attached hereto as Exhibit 45.
103. Similarly, on May 24, 2016, Mr. Gonen timely submitted two administrative appeals of the constructive denials of the Third, Fourth, and Fifth Requests. A true and correct copy of Mr. Gonen’s May 24, 2016 Appeal from the constructive denial of the Third and Fourth Requests is attached hereto as Exhibit 46. A true and correct copy of Mr. Gonen’s May 24, 2016 Appeal from the constructive denial of the Fifth Request is attached hereto as Exhibit 47.
104. By letter dated June 8, 2016 from DOE First Deputy General Counsel Judy Nathan, the DOE denied Mr. Gonen’s administrative appeals out of hand. As with Ms. Edelman’s and Mr. Short’s appeal, the DOE held that Mr. Gonen’s requests had not been constructively denied because “according to Chancellor’s Regulation D-110(VIII)(A), a request may be deemed constructively denied only where a requestor ‘is neither granted nor denied access to records within the time limits set forth above [in section V(VI)] or in the acknowledgment letter or any extension letter(s)…’ (emphasis added).” Further, DOE observed that Mr. Baranello had “properly determined that additional time was required” to respond because of “the extensiveness of your various request items,” and that “review and redaction of the requested records . . . are time-consuming.” A true and correct copy of DOE’s June 8, 2016 Denial Letter is attached hereto as Exhibit 48.
105. On July 19, 2016, in response to a request from Petitioners, Kristin O’Neill, Assistant Director of the Committee on Open Government, issued an advisory opinion regarding Petitioners’ requests and whether the Chancellor’s Regulations are consistent with FOIL and the Implementing Regulations. The Committee concluded that “there is no provision in the statute for repeated extensions,” and an “agency is not permitted to establish the right to repeated extensions via regulation, where such right does not exist in statute or in the Committee’s own regulations.” Further, the Committee concluded that it was reasonable for Petitioners to conclude that the receipt of repeated extension notices and failure of DOE to determine Petitioners’ rights of access constituted constructive denials. A true and correct copy of the Advisory Opinion is attached hereto as Exhibit 49.

XIV. OTHER EVIDENCE OF A PATTERN AND PRACTICE OF DELAY

106. On January 13, 2016, Ms. O’Neill issued an advisory opinion at the request of Nairobi Vives, Esq. whose FOIL request to Empire State Development had been similarly delayed by numerous unilateral extensions. There, the Committee also observed that “there is no provision in the statute for repeated extensions,” and opined that after three unilateral extensions by the agency, it was reasonable for the requester to construe the delay in responding as a constructive denial. A true and correct copy of the Advisory Opinion is attached hereto as Exhibit 50.
107. In April 2013, the then-Public Advocate For the City of New York, Mayor Bill de Blasio, issued a report titled “Breaking Through Bureaucracy: Evaluating Government Responsiveness to Information Requests in New York City.” In the report, the Mayor gave the DOE a “D” rating for its handling of FOIL requests in general and an “F” for its response time. Further, the Mayor stated that the failure of an agency to send a “yes” or “no” response six months after the initial request is “unacceptable and represent de-facto denials . . . (and) undermines the spirit of the Freedom of Information Law.” A true and correct copy of the Report is attached hereto as Exhibit 51.
108. On July 28, 2015, New York Post reporter, Carl Campanile submitted a request for copies of reports completed by the DOE OSI that substantiated claims of test or grade tampering/inflation or other cheating in public schools for the 2013-2014 and 2014-2015 school year. This request is nearly identical to – albeit narrower than – the Seventh Request at issue on this petition (OSI reports completed or finalized since January 1, 2014). See supra ¶ 49. On August 4, 2015, Mr. Baranello sent a letter to Mr. Campanile acknowledging receipt of his request and stating that DOE anticipated providing a response by September 1, 2015. Since then, Mr. Baranello sent eleven (11) Form Delay Letters granting DOE unilateral extensions until September 30, 2015, October 29, 2015, January 4, 2016, February 2, 2016, March 2, 2016, March 30, 2016, April 27, 2016, May 25, 2016, June 23, 2016, July 22, 2016, and finally August 19, 2016. This request has now been outstanding for more than a year without a response.
While this request is not at issue in the instant Article 78 Petition, it demonstrates further that DOE is engaged in a pattern and practice of unreasonably delaying responding to FOIL requests. A true and correct copy of the initial request, acknowledgment letter and subsequent Form Delay Letters are attached hereto as Exhibit 52.

FIRST CAUSE OF ACTION
(DECLARATORY JUDGMENT – DOE LACKS AUTHORITY TO ISSUE REGULATIONS IN CONTRAVENTION OF N.Y. PUB. OFFICERS LAW § 84 ET SEQ.)

109. Petitioners repeat and reallege Paragraphs 1 through 108 above, and incorporate such allegations as if fully set forth herein.
110. The public’s right of access to government information is governed by the Freedom of Information Law (“FOIL”), N.Y. Pub. Officers Law § 84 et seq.
111. FOIL requires that “Each agency shall promulgate rules and regulations, in conformity with this article and applicable rules and regulations promulgated . . . pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article”. N.Y. Pub. Off. Law § 87(1)(b).
112. With respect to the timing of determining whether to grant or deny a request, FOIL requires that within five business days of the receipt of a request for records, an agency must “make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied.” N.Y. Pub. Off. Law § 89(3)(a) (emphasis added).
113. Further, in the event an agency fails to determine whether to grant or deny a request within a reasonable time period, both FOIL and the Implementing Regulations make clear that it constitutes an appealable denial – i.e., a “constructive denial.” N.Y. Pub. Off. Law § 89(4)(a) (“Failure by an agency to conform to the provisions of subdivision three of this section shall constitute a denial.”); 21 N.Y.C.R.R. § 1401.5(e) (“failure to comply with the time limitations . . . shall constitute a denial of a request that may be appealed”).
114. In addition to the plain language of the FOIL, the Implementing Regulations require that if an agency is unable to grant or deny a request within five business days, that it must include an approximate date in the acknowledgment letter if it anticipates disclosing records in twenty days or fewer, or a date certain if beyond twenty days. 21 N.Y.C.R.R. § 1401.5(c)(3). The Implementing Regulations also provide that “failure to comply with the time limitations . . . shall constitute a denial of a request that may be appealed.” 21 N.Y.C.R.R. § 1401.5(e).
115. Neither FOIL nor its Implementing Regulations authorizes agencies to take repeated extensions or afford an agency the option of repeatedly providing “a new reasonable approximate date for the agency’s response” as DOE contends. See Exhibits 45, 48.
116. Nevertheless, Chancellors Regulation D-110(VIII)(A) purports to authorize DOE to issue “extension letter(s)” thereby contravening the express language of the FOIL and the Committee on Open Government’s Implementing Regulations. Specifically, Chancellor’s Regulation D-110(VIII)(A) provides that “A requester who is neither granted nor denied access to records within the time limits set forth above or in the acknowledgment letter or any extension letter(s) may consider the request constructively denied and may appeal such denial in accordance with the procedures set forth below.” (emphasis added)
117. Permitting DOE to send unlimited extension letters without the specter of a constructive denial, as opposed to providing a single reasonable “approximate date” for when it will grant or deny a FOIL request, permits the agency to delay responses in perpetuity, frustrates the public’s right to know, and upends the system of administrative appeals and judicial review as set forth in the FOIL.
118. Chancellors Regulation D-110(VIII)(A) is inconsistent with the language of N.Y. Pub. Officers Law § 89(3)(a) and its underlying purpose as it purports to permit DOE to unreasonably delay and effectively prevent access to government information without judicial review merely by sending monthly letters unilaterally extending its time to grant or deny FOIL requests.
119. DOE acknowledges that it applies Chancellors Regulation D-110(VIII)(A) so as to permit it to send repeated extension letters for months on end provided each letter includes “a new reasonable approximate date” for the agency to respond.
120. DOE also acknowledges that Chancellor’s Regulation D-110(VIII)(A) deems a request constructively denied only when the request is neither granted nor denied “within the time limits set forth . . . in the acknowledgment letter or any extension letter(s) . . .”
121. Chancellor’s Regulation D-110(VIII)(A) is plainly an invalid usurpation of legislative authority and avoidance of judicial review.
122. Chancellor’s Regulation D-110(VIII)(A) has caused, and continues to cause, immediate and irreparable harm to the rights guaranteed to Petitioners and to the public at large under FOIL, Article 1, Section 8 of the New York State Constitution, and the First Amendment to the United States Constitution.
123. The validity or invalidity of Chancellor’s Regulation D-110(VIII)(A) presents a ‘substantial or novel (issue), likely to recur and capable of evading review.’” Hearst Corp. v. City of Albany, 88 A.D.3d 1130, 1131 (3d Dep’t 2011) (alteration in original) (quoting City of New York v. Maul, 14 N.Y.3d 499, 507 (2010)). It is likely that the issue presented here will recur in the future, as the DOE maintains that Chancellor’s Regulation D-110(VIII)(A) entitles it to issue serial extension letters, ad infinitum, in response to FOIL requests.
124. Petitioners have no means to challenge Respondents extended, unilateral, and unreasonable delays. Petitioners have no adequate remedy at law.
125. Accordingly, Petitioners are entitled to a judgment declaring that Chancellors Regulation D-110 is unlawful and/or is inconsistent with N.Y. Pub. Officers Law § 84 et seq. and is, accordingly, invalid.

SECOND CAUSE OF ACTION
(DECLARATORY JUDGMENT – DOE’S PRACTICE OF SENDING REPEATED FORM DELAY LETTERS IS INHERENTLY UNREASONABLE AND CAUSE FOR A CONSTRUCTIVE DENIAL UNDER N.Y. PUB. OFFICERS LAW § 84 ET SEQ.)

126. Petitioners repeat and reallege Paragraphs 1 through 125 above, and incorporate such allegations as if fully set forth herein.
127. The public’s right of access to government information is governed by the Freedom of Information Law (“FOIL”), N.Y. Pub. Officers Law § 84 et seq.
128. With respect to the timing of determining whether to grant or deny a request, FOIL requires that within five business days of the receipt of a request for records, an agency must “make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the
approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied.” N.Y. Pub. Off. Law § 89(3)(a) (emphasis added).
129. Further, in the event an agency fails to determine whether to grant or deny a request within a reasonable time period, both FOIL and the Implementing Regulations make clear that it constitutes an appealable denial – i.e., a “constructive denial.” N.Y. Pub. Off. Law § 89(4)(a) (“Failure by an agency to conform to the provisions of subdivision three of this section shall constitute a denial.”); 21 N.Y.C.R.R. § 1401.5(e) (“failure to comply with the time limitations . . . shall constitute a denial of a request that may be appealed”).
130. Neither FOIL nor its Implementing Regulations authorizes agencies to take repeated extensions or afford an agency the option of repeatedly providing “a new reasonable approximate date for the agency’s response” as DOE contends. See Exhibits 45, 48.
131. DOE has taken the position that sending as many as sixteen separate Form Delay Letters and failing to determine whether to grant or deny a request for as many as twenty-one (21) months is reasonable under the circumstances of a request that calls for the production of a single document.
132. DOE has also taken the position that it may send as many Form Delay Letters as it wants without triggering a constructive denial so long as it sends an extension letter within the time limit set forth by its prior extension letter.
133. DOE’s interpretation of Chancellor’s Regulation D-110(VIII)(A) and the FOIL in general has caused, and continues to cause, immediate and irreparable harm to the rights guaranteed to Petitioners and to the public at large under FOIL, Article 1, Section 8 of the New York State Constitution, and the First Amendment to the United States Constitution.
134. Whether it is reasonable for DOE to take numerous unilateral extensions of its time to determine whether to grant or deny a request presents a ‘substantial or novel (issue), likely to recur and capable of evading review.’” Hearst Corp. v. City of Albany, 88 A.D.3d 1130, 1131 (3d Dep’t 2011) (alteration in original) (quoting City of New York v. Maul, 14 N.Y.3d 499, 507 (2010)). It is likely that the issue presented here will recur in the future, as the DOE maintains that its actions of sending unilateral extension letters for up to twenty one (21) months if not longer for requests that call for the production of a single document is inherently reasonable.
135. Petitioners have no means to challenge Respondents extended, unilateral, and unreasonable delays. Petitioners have no adequate remedy at law.
136. Accordingly, Petitioners are entitled to a judgment declaring that Respondents’ interpretation and application of Chancellors Regulation D-110(VIII)(A) authorizing it to send repeated unilateral extension letters is unlawful and/or is inconsistent with N.Y. Pub. Officers Law § 84 et seq.

THIRD CAUSE OF ACTION
(ARTICLE 78 PETITION – DIRECTING DOE TO PRODUCE RECORDS RESPONSIVE TO OUTSTANDING REQUESTS)

137. Petitioners repeat and reallege Paragraphs 1 through 136 above, and incorporate such allegations as if fully set forth herein.
138. Article 78 of New York’s Civil Practice Law & Rules is the appropriate method for review of agency determinations concerning FOIL requests.
139. The Requests reasonably described the requested records.
140. The information requested is of significant interest to the general public.
141. DOE has engaged in a pattern and practice of failing to comply with its obligations under New York Public Officers Law Section 84 et seq., and Respondents’ Chancellor’s Regulation D-110 by routinely ignoring statutory deadlines, constructively denying requests and ultimately failing to disclose to Petitioners the requested documents to which they are entitled.
142. The DOE’s failure to perform its duties violates the letter and spirit of FOIL, which provides for open disclosure to the public.
143. So long as the DOE maintains its pattern and practice of non-compliance with FOIL, Petitioners are profoundly hindered in their ability to report on the government – the “public’s business” – and hold the DOE accountable for its practices. The DOE has in its trust the City’s children and how it executes that trust is of supreme public concern. See Pub. Off. Law § 84.
144. DOE’s actions have caused, and continue to cause, immediate and irreparable harm to the rights guaranteed to Petitioners and to the public at large under FOIL, Article 1, Section 8 of the New York State Constitution, and the First Amendment to the United States Constitution.
145. Petitioners have exhausted their administrative remedies and have not obtained the requested records.
146. At least with respect to four of the twelve FOIL requests at issue (the First, Second, Eighth, and Eleventh Requests), Respondents failed to grant or deny access to records even within the time limits set forth in their extension letters. Accordingly, even crediting Respondents’ own interpretation of the Chancellor’s Regulation, these four requests at a minimum have been constructively denied and are ripe for decision.
147. To the extent DOE claims as it did in its June 6, 2016 and June 8, 2016 denials of Petitioners’ administrative appeals that Petitioners have failed to exhaust their administrative remedies because DOE has not yet granted or denied their Requests, the exhaustion of administrative remedies under DOE’s conception thereof would be futile since DOE repeatedly and unreasonably delays making any decision granting or denying their requests.
148. As a result of the foregoing, DOE has violated FOIL.
149. Petitioners have no adequate remedy other than this proceeding, and no previous application for the relief requested herein has been made to the court

PRIOR APPLICATION

150. No application has been made for the relief requested herein.

PRAYER FOR RELIEF

WHEREFORE, Petitioners respectfully request that this Court grant judgment:

(1) Declaring that Chancellor’s Regulation Chancellors Regulation D-110(VIII)(A) is unlawful and/or is inconsistent with N.Y. Pub. Officers Law § 84 et seq. and is, accordingly, invalid;
(2) Declaring that the DOE’s practice of sending repeated Form Delay Letters is inherently unreasonable and that determinations in its administrative appeal decisions that it may continue to deny access to public records because it has re- issued serial unilateral extensions violates its obligations under FOIL, N.Y. Pub. Officers Law § 84 et seq.;
(3) Granting Petitioners’ Article 78 Petition, finding that DOE has constructively denied Petitioners’ requests, that Petitioners have exhausted their administrative remedies, and directing DOE to produce all disclosable records responsive to Petitioners’ outstanding requests within twenty (20) days of the Court’s order;
(4) Awarding Petitioners their costs and attorneys’ fees pursuant to Public Officers Law § 89(4)(c); and
(5) Awarding Petitioners such other and further relief as the Court deems just and proper.

Dated: New York, New York August 9, 2016

Respectfully submitted,

Laura R. Handman
Jeremy A. Chase
DAVIS WRIGHT TREMAINE LLP
Tel.: (212) 489-8230
Fax: (212) 489-8340
laurahandman@dwt.com jeremychase@dwt.com

Attorneys for Petitioners-Plaintiffs
NYP Holdings, Inc., Susan Edelman, Aaron Short, and Yoav Gonen

Summons-Complaint
MOL
AFFIDAVIT of Attorney Jeremy A. Chase
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