NYC DOE Knowingly and Recklessly Violate Open Meetings Law on August 21, 2013

The Agenda below for the Panel For Educational Policy (PEP) shows how the NYC DOE has disdain for NYS Committee on Open Government and Section 105 of the Open Meetings Law. The relevant part of Section 105 is the part about the scheduling of the Executive Session (emphasis added by me):

§105. Conduct of executive sessions.
1. Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only, provided, however, that no action by formal vote shall be taken to appropriate public moneys:
a. matters which will imperil the public safety if disclosed;
b. any matter which may disclose the identity of a law enforcement agent or informer;
c. information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed;
d. discussions regarding proposed, pending or current litigation;
e. collective negotiations pursuant to article fourteen of the civil service law;
f. the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation;
g. the preparation, grading or administration of examinations; and
h. the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof.
2. Attendance at an executive session shall be permitted to any member of the public body and any other persons authorized by the public body. 

In other words, the members of the PEP are liable for violating NY State Law by agreeing to meet in an Executive Session before the regular public meeting begins, as stated in the Agenda.

We have stated since 2002 that all members of the PEP should be removed, should resign, or be sued, for violating the rights of parents teachers and children to information about public money and other data affecting the public.

And, we also filed a Freedom of Information request for the minutes of the PEP meetings, and you know what we got? The Agenda.

Betsy Combier

MEDIA ADVISORY For Planning Purposes Only August 14, 2013
PUBLIC MEETING OF THE PANEL FOR  EDUCATIONAL POLICY Murry Bergtraum High School for Business Careers 411 Pearl Street New York, NY 10038 Wednesday, August 21, 2013 6:00 P.M. AGENDA I.    Executive Session A.     Executive Session regarding Matter Pertaining to Employee Discipline:  Inquest on Employee Termination [NOTE: This is closed to the public and will  take place prior to the 6:00PM public meeting start time.] II.   Regular Public Meeting A.     Chancellor’s Update B.     Approval of Annual Estimate of the Total Sum of Money Available to  Support DOE Operations (see here) The Panel will vote on the attached total sum of money necessary to support DOE  operations. Public comment on this item will take place before the Panel votes. C.     Approval of Revised Formulas Used to Allocate Revenue Among Community  School Districts and Schools (see here) The Panel will vote on the attached revised formulas used to allocate revenue among  community school districts and schools. Public comment on this item will take place  before the Panel votes. D.     Approval of Revised Chancellor’s Regulations (see here) The Panel will vote on the attached amendments to Chancellor’s Regulations. Public  comment on items being considered by the Panel will take place before the Panel votes. E.      Approval of Contracts (see here) The Panel will vote on the attached list of contracts. Public comment on contracts  being considered by the Panel will take place before the Panel votes. F.   General Public Comment Sign Up For Public Comment Speaker sign-up for agenda items II.B through II.E will begin at 5:30PM at the door  and will close at 6:30PM  Each speaker will be allowed two minutes to speak during  the public comment portions of the meeting. Interpretation services will be provided in Spanish. American Sign Language will  be provided through reservation only: (212) 374-4946 or panel@schools.nyc.gov Contact:  Chancellor’s Press Office (212) 374-5141

Freedom of Information Requests: Explanation of Time Limits for Response (June 2005)

The Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3) of the Freedom of Information Law states in part that:

"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall 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..."

It is noted that new language was added to that provision on May 3 (Chapter 22, Laws of 2005) stating that:

"If circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part."

Based on the foregoing, an agency must grant access to records, deny access in writing, or acknowledge the receipt of a request within five business days of receipt of a request. When an acknowledgement is given, it must include an approximate date within twenty business days indicating when it can be anticipated that a request will be granted or denied. However, if it is known that circumstances prevent the agency from granting access within twenty business days, or if the agency cannot grant access by the approximate date given and needs more than twenty business days to grant access, it must provide a written explanation of its inability to do so and a specific date by which it will grant access. That date must be reasonable in consideration of the circumstances of the request.

The amendments clearly are intended to prohibit agencies from unnecessarily delaying disclosure. They are not intended to permit agencies to wait until the fifth business day following the receipt of a request and then twenty additional business days to determine rights of access, unless it is reasonable to do so based upon "the circumstances of the request." From my perspective, every law must be implemented in a manner that gives reasonable effect to its intent, and I point out that in its statement of legislative intent, §84 of the Freedom of Information Law states that "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible." Therefore, when records are clearly available to the public under the Freedom of Information Law, or if they are readily retrievable, there may be no basis for a delay in disclosure. As the Court of Appeals, the state’s highest court, has asserted:

"...the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom. By their very nature such objectives cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception. The phrase 'public accountability wherever and whenever feasible' therefore merely punctuates with explicitness what in any event is implicit" [Westchester News v. Kimball, 50 NY 2d 575, 579 (1980)].

In a judicial decision concerning the reasonableness of a delay in disclosure that cited and confirmed the advice rendered by this office concerning reasonable grounds for delaying disclosure, it was held that:

"The determination of whether a period is reasonable must be made on a case by case basis taking into account the volume of documents requested, the time involved in locating the material, and the complexity of the issues involved in determining whether the materials fall within one of the exceptions to disclosure. Such a standard is consistent with some of the language in the opinions, submitted by petitioners in this case, of the Committee on Open Government, the agency charged with issuing advisory opinions on FOIL"(Linz v. The Police Department of the City of New York, Supreme Court, New York County, NYLJ, December 17, 2001).

If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time beyond the approximate date of less than twenty business days given in its acknowledgement, if it acknowledges that a request has been received, but has failed to grant access by the specific date given beyond twenty business days, or if the specific date given is unreasonable, a request may be considered to have been constructively denied [see §89(4)(a)]. In such a circumstance, the denial may be appealed in accordance with §89(4)(a), which states in relevant part that:

"...any person denied access to a record may within thirty days appeal in writing such denial to the 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."

Section 89(4)(b) was also amended, and it states that a failure to determine an appeal within ten business days of the receipt of an appeal constitutes a denial of the appeal. In that circumstance, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules.