RE: FOIL Request For Records From the Secret Meeting Held At Tweed on 3020-a, February 24, 2015: Joe Baranello Says He Will Respond "Soon"

 

Joe Baranello

Dear Mr. Baranello,

It was very nice to hear your opinion on student privacy at the NYC Bar on May 26, 2015. I enjoyed reading all the materials from that event! By the way, I am confused about your new title, "Chief Privacy Officer" of the DOE. Are you still the Chief Records Access Officer? Maybe both?

See here:

"Student Data Privacy in an Online, Personalized Learning World

Tuesday, May 26, 2015, 7:00 pm - 9:00 pm
Please sign in to register.

City Bar members: Free
Non-members: $25
IAPP members: Click here to register

What are the privacy tradeoffs when schools use cloud-based adaptive learning tools? Does current federal law (FERPA, COPPA) provide a sufficient framework for safeguarding student privacy and information security? How can service providers to schools use student data, and when are they required to obtain parental consent? What kind of data is "Student Record" data, and what constitutes a "legitimate educational interest" under FERPA? When is it permissible to transfer or make Student Records accessible to other school districts or third parties? Are there tradeoffs between enhanced privacy and furthering research that can enhance education? Do adaptive learning tools provide real educational benefits or are they just hype? How do the ADA and IDEA apply in the context of these tools?

Moderator: Laura Himelstein, Education and the Law Committee Member

Speakers: Joseph A. Baranello, Chief Privacy Officer and Agency Counsel, New York City Department of Education; Professor Joel Reidenberg, Founding Academic Director, Center on Law and Information Policy; Li Reilly, Deputy General Counsel, Amplify Education, Inc.; Tina Sciocchetti, Executive Director for Test Security and Educator Integrity and Interim Chief Privacy; Officer, NYS Department of Education; Katherine Varker, Associate General Counsel, McGraw-Hill Education

Sponsored by: Committee on Education and the Law, Christine Raniga, Chair; Committee on Children and the Law, Meredith Hamsher, Chair; Committee on Information Technology, Joshua Graubart, Chair

Co-sponsored by: International Association of Privacy Professionals

NY CLE Credit: 2.0 professional practice"

 That being said, I am very appreciative of your information that when Courtenaye Jackson-Chase, the General Counsel, does not want/cannot answer an appeal of a Freedom of Information Law request (stated by you as "...in the absence of the General Counsel..."), the responsibility to issue a reply falls on First Deputy Counsel Judy Nathan rather than Chief Deputy Counsel Charity Guerra. See the email below.

 

Yet problems remain.

 

In your email you say you will get me the records sought in FOIL #11,129 "soon". I am so sorry to say that this word has no meaning for me, and I am currently suing you in NY State Supreme Court over your almost 2-year delay after I filed a FOIL request to obtain former Chancellor Dennis Walcott's contract, which similarly was on your supervisor's desk in your office. Respectfully, I must argue that soon is not soon at all, considering the fact that your boss, General Counsel Courtenaye Jackson-Chase, was the presenter at the February 24, 2015 meeting at Tweed on 3020-a proceedings and rules.

 However, this does not remedy the fact that the Office of the General Counsel to the NYC Department of Education has now violated §89(4)(a) of FOIL, which states, in relevant part:

"4. (a) Except as provided in subdivision five of this section, any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought." 

In good faith, I will extend my prior Notice of Claim filing date to June 6, 2015.

Please give me the full price for all the original emails, documents, etc., used/sent/handed out at the February 24, 2015 meeting cited in FOIL #11,129 no later than June 2, 2015, at 5 PM.

Please be advised that Penal Law §240.65 states:"A person is guilty of unlawful prevention of public access to records when, with intent to prevent the public inspection of a record pursuant to article six of the public officers law, he willfully conceals or destroys any such record. Unlawful prevention of public access to records is a violation."  

 

Please further be advised that FOIL §89(8) states:

"8. Any person who, with intent to prevent public inspection of a record pursuant to this article, willfully conceals or destroys any such record shall be guilty of a violation."

 If I do not get the documents  by June 4, 2015, I will assume that you are knowingly and deliberately hiding the records. In that case, you will be forcing me to pursue all my legal remedies.

A person is guilty of unlawful prevention of public access to records when, with intent to prevent the public inspection of a record pursuant to article six of the public officers law, he willfully conceals or destroys any such record. Unlawful prevention of public access to records is a violation. - See more at: http://codes.lp.findlaw.com/nycode/PEN/THREE/N/240/240.65#sthash.lDtXEoVJ.dpuf, 

Respectfully,

Betsy Combier

I responded to the email I received from Mr. Baranello on May 28, 2015:

 

Baranello Joseph	May 28 (3 days ago)
to me, Jackson-Chase

 

Dear Ms. Combier,

 

In response to your inquiry, I expect to have a response to you soon.  In addition, to address a question you raised in previous correspondence, it is my understanding that the position of Chief Deputy Counsel was created in 2006. Please note that as long as I can recall, in the absence of the General Counsel, the designated Records Access Appeals Officer has always been the First Deputy Counsel (i.e., Judy Nathan) and not the Chief Deputy Counsel (i.e. (and in order since my start with the DOE in 2009), Courtenaye Jackson-Chase, Tracy Cooney and Charity Guerra). 

 

Sincerely,

 

Joseph A. Baranello

Central Records Access Officer and Agency Counsel

New York City Department of Education

52 Chambers St.

New York, NY 10007

 

From: Betsy Combier <betsy.combier@gmail.com>
Date: May 27, 2015 at 12:10:50 AM EDT
To: <jnathan@schools.nyc.gov>, Baranello Joseph <JBaranello3@schools.nyc.gov>, Betsy Combier <betsy.combier@gmail.com>, Jackson-Chase Courtenaye <cjackson-chase@schools.nyc.gov>
Cc: <rfreeman@dos.state.ny.us>
Subject: FOIL #11,129

Dear Ms. Nathan, Mr. Baranello, and Ms. Jackson Chase:

 

On March  17, 2015  I filed a FOIL request for all the documents , emails, etc., that were used or handed out to all NYSUT and DOE Attorneys, all Arbitrators and any other attendees at your February 24, 2015 meeting on 3020-a arbitration.

 

You are playing games with the rights I have to receive this information by delaying any response, even my latest appeal, filed with you May 9.  I agreed weeks ago to pay for the documents. It was your meeting, held in your offices!

 

This email serves as Notice: on Monday June 1, 2015 I will be forced to file an Article 78 against you and your deliberate delay. I will also file a Notice of Claim to highlight the disparate treatment which seems to be a personal attack on me and my advocacy.

 

Please resolve this before it goes any further and give me the information I have requested.

 

Respectfully,

 

Betsy Combier

Once Again, Betsy Combier Questions the Delay in Getting Information About the Feb. 24, 2015 Plenary Meeting About 3020-a Prosecution by the DOE

Judy Nathan

First Deputy Counsel at NYC Department of Education
Greater New York City Area
Education Management

Education	Cornell University

 Experience

First Deputy Counsel

NYC Department of Education

April 1999 – Present (16 years 2 months)       

WEDDINGS; Judy Nathan, Andrew Fusco
Published: November 11, 2001 

General Practice Unit FOIL Attorney

Tracking Code

7101

Job Description

(Those who previously applied need not re-apply)

Position Summary:  Under the direction of the Deputy Counsel of the Department of Education’s (DOE) Legal Services General Practice Unit, the attorney engages in difficult and complex legal work having significant financial, procedural or policy consequences. Performs related work.

Reports to: Deputy Counsel, General Practice Unit

Direct Reports: N/A

RESPONSIBILITIES

Freedom of Information Law (FOIL) Responsibilities

• Coordinates with and assists the Central Records Access Officer (CRAO) in implementing Department policy and legal mandates related to FOIL requests.
• Handles FOIL requests and appeals.
• Communicates with the press, government officials and other individuals on actual or potential requests and coordinates press requests with the Office of Communications and Media Relations.
• Provides ongoing technical assistance to DOE staff. Manages formal staff development, where needed.
• Maintains and utilizes an office database to monitor compliance, e.g., timeliness of responses, appropriateness of released materials, etc.
• Makes recommendations to the CRAO regarding FOIL appeals and assists with document redactions, as needed.

 Subpoena, Records Retention and Other Records-Related Responsibilities

 Provides ongoing technical assistance on various subpoena and records issues, including FERPA, discovery demands for tort litigation and records retention, and assists with the supervision of the Subpoena Unit.

Prepares documents in response to court orders on subpoenas, and appears in court if needed.

Coordinates with the NYC Law Department on strategy, papers and discovery in related litigation and recommends settlements and adjustments.

Drafts rules and regulations for the Department of Education.

 General Practice Unit Responsibilities

Represents the DOE in employment discrimination cases and administrative hearings; provides advice on education law.

Prepares Chancellor’s rulings on various grievance appeals and student suspension appeals.

Coordinates with the Corporation Counsel’s office on papers and discovery in litigated cases, e.g., Article 78 cases involving termination and Title VII cases.

Works on major class actions and policy initiatives.

Interprets and responds to issues handled by the General Practice Unit including governance, FMLA, ADA, charter schools, student records, dress code, religious accommodations, search and seizure, after-school use of facilities, immunization, compulsory education, health issues, school trips, and home schooling.

Confers with subject matter specialists, technical experts, and other attorneys, including counsel for litigants.

Recommends settlements and adjustments.

Conducts legal investigations and examines prospective witnesses.

Drafts rules and regulations for the Department of Education.

Analyzes and reports on the effects of city, state, and federal legislation.

Qualification Requirements:

Minimum:

Admission to the New York State Bar AND three (3) years of progressively responsible United States legal experience subsequent to admission to any state bar.

 Preferred 

• Ability to rapidly understand provisions of applicable law and regulations.
• Ability to write clearly and concisely.
• Ability to conduct legal research efficiently.

 Salary: $85,000+ 

Please include a resume and cover letter with your application.

Resumes will be reviewed on an ongoing basis. We encourage applicants to apply as soon as possible. 

NOTE: The filling of all positions is subject to budget availability and/or grant funding. 

AN EQUAL OPPORTUNITY EMPLOYER

It is the policy of the Department of Education of the City of New York to provide educational and employment opportunities without regard to race, color, religion, creed, ethnicity, national origin, alienage, citizenship status, age, marital status, partnership status, disability, sexual orientation, gender (sex), military status, prior record of arrest or conviction (except as permitted by law), predisposing genetic characteristics, or status as a victim of domestic violence, sexual offenses and stalking, and to maintain an environment free of harassment on any of the above-noted grounds, including sexual harassment or retaliation.  Inquiries regarding compliance with this equal opportunity policy may be directed to: Office of Equal Opportunity, 65 Court Street, Room 1102, Brooklyn, New York 11201, or visit the OEO website at http://schools.nyc.gov/OEO

 

 

 

Joe Baranello Says Pay or You Dont Get To Play (F11,129)

NYC DOE Joe Baranello

TO: Courtenaye Jackson-Chase, Esq.

       General Counsel

        FOIL Appeals Officer

 

       Robert Freeman

       Committee on Open Government

Dear Ms. Jackson-Chase,

Today, I received, once again, an email from your Records Access Officer Joseph Baranello which delays the release of records, digitally stored data, and documents pertinent to your meeting held at your office on February 24, 2015, at 4 PM with NYSUT/DOE attorneys and arbitrators currently working on §3020-a cases in New York City:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Pursuant to the Freedom of Information Law, I am appealing this constructive denial of access by Records Access Officer Joseph A. Baranello, Esq. 

 

The advisory opinion by Robert J. Freeman which was cited by Mr. Baranello, FOIL-AO-19021, is here:

FOIL-AO-19021

From:   Freeman, Robert (DOS)
Sent:    Wednesday, May 15, 2013 3:00 PM
To:
Cc:       'Maureen.Murphy@suny.edu'
Subject:           RE: FOIL Request Control No. 1315

Dear :

            I have received your note - - the response to your request by SUNY regarding fees is not, in my view, entirely clear. 

            Section 87(1)(c) of FOIL authorizes an agency to establish a fee based on the actual cost of reproducing records that are maintained electronically.  If it takes 2 hours or more to prepare the records sought, an agency may charge a fee based on the hourly salary of the lowest paid employee able to do so, plus the cost of the storage media.  If it takes less than two hours, the actual cost would involve only the storage media.

            The issue with respect to the response involves the term “prepare.”   We agree that the effort needed to extract records or data involves the preparation of records.  If redaction is accomplished electronically, that, too would likely be found by a court to reflect the preparation of a record.  However, if, for example, records are extracted and exist in paper form, and if redactions are made manually, the process of redacting would not, in our opinion, constitute the preparation of records; the records would already have been prepared, and the agency would redact or delete portions of those records already prepared in order to disclose the remainder.  No fee may be charged in that latter circumstance.

I hope that I have been of assistance.

FOIL-AO-f19021
19021
 

For comparison purposes, I am in possession of similar FOIL requests made by me that the New York State Education Department, when responding to a request for records which may require a fee, writes:

 

"SED charges the statutorily permitted fee of $.25 per page for duplication of records requested under FOIL (Public Officers Law §87[1][b][iii]). There is no provision in law or regulation requiring the waiver of this fee. Payment must be made to the NYS Education Department by check or money order. Do not send any payment until you are notified that your request is granted and informed of the charge for your request. If your request is for electronic records and your requested is granted, the records will be provided to you in that format.

 

If your request is granted one of the following will happen:

 

1. If your request can be filled immediately, and the total duplication fee is under $25.00, staff will forward the requested records to you with a statement of what you owe for the duplication fee. Or:

 

2. If the total duplication fee for your request is $25.00 or more (100 pages), you will be advised of the page count and duplication fee owed in advance of duplicating the records. Upon receipt of payment, staff will duplicate and mail the requested records. Or:

 

3. If it will take time to locate and/or duplicate the records you have requested, you will be given a date by which you will be told the page count and duplication fee for your request."

This seems very reasonable to me, and I am seeking an analogous response from you when you determine this appeal of  the delay and constructive denial of access of the records requested in F11,129.

I obviously know that you called this meeting.  It was held in your offices at Tweed.  I know when it occurred and how the people invited were told about the meeting.

I have sent emails to the FOIL Unit and posted my requests on my blog for a specific and detailed invoice for the records relating to F11,129 be given to me before I commit to paying an amount which may or may not cover all the records from this plenary meeting.

Mr. Baranello is stonewalling me.

I am appealing to you, as the organizer of the plenary meeting on February 24, 2015, and as the Records Appeals Officer, to please detail how much I will be charged, and the number of (1) electronic records and (2) documents this fee includes, so that I may choose to pay all or part of the amount you demand.  My advocacy for teachers who are undergoing, or about to undergo, §3020-a hearings is harmed by this delay. 

Please reply within the ten (10) days required by the Freedom of Information Law. Thank you for your

attention and consideration!

 

Betsy Combier

 Joe Baranello and His New Facebook Comment on the City, as Well as His Refusal to Answer Betsy Combier's FOIL Request #11,129

 

Another Request Sent By Betsy Combier Concerning F11,129 For Records of the Mandatory 3020-a Meeting Held on February 24, 2015

 

 Betsy Combier Asks FOIL Officer Joe BaranelloTo Clarify the Fees of $29.95/hr For F11,129

http://nycrubberroomreporter.blogspot.com/2015/04/betsy-combier-asks-foil-officer-joe.html

 

Betsy Combier Files a Freedom of Information Request to Obtain the Information Given Out At The NYC DOE February 24, 2015 Secret Meeting on 3020-a Hearings

http://nycrubberroomreporter.blogspot.com/2015/03/betsy-combier-files-freedom-of.html

betsy.combier@gmail.com

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