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