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Sunday, January 11, 2015

OPEN GOVERNMENT GUIDE: On What Constitutes the Authority Permitting An Exemption From FOIL


In determining what constitutes the kind of specific statutory authority permitting an exemption from FOIL, the courts have held that what is required is clear legislative intent to establish and preserve confidentiality. M. Farbman & Sons v. New York City, 62 N.Y.2d 75, 464 N.E.2d 437, 476 N.Y.S.2d 69 (1984).

The other statute need not expressly state that it is intended to establish a FOIL exemption, but it must show the intention of confidentiality. Capital Newspapers Division of Hearst Corp. v. Burns, 67 N.Y.2d 562, 496 N.E.2d 665, 505 N.Y.S.2d 576 (1986). Only a state or federal statute and not an administrative rule, regulation or city ordinance will create an exemption under this section. See Morris v. Martin, 82 A.D.2d 965, 440 N.Y.S.2d 365 (3d Dep't 1981); rev'd, 55 N.Y.2d 1026, 434 N.E.2d 1079, 449 N.Y.S.2d 712 (1982); Brownstone Publishers Inc. v. New York City Department of Finance, 167 A.D.2d 166, 561 N.Y.S.2d 245 (1st Dep't 1990) (in 1989 the state legislature amended section 11-2115 of theAdministrative Code of the City of New York to deem it a state statute for purposes of FOIL to enforce its "secrecy" provision). Contra Faulkner v. LeFevre, 140 Misc.2d 699, 532 N.Y.S.2d 337 (Sup. Ct. 1988) (redacting names from inmate grievance document pursuant to agency rule requiring privacy).

Where records are subject to other specific statutory exemptions, FOIL's provisions for deletion of identifying details do not remove confidentiality requirements. Short v. Board of Managers, 57 N.Y.2d 399, 442 N.E.2d 1235, 456 N.Y.S.2d 724 (1982).

A number of cases have addressed other state or federal statutes as a basis for exemption from disclosure, as set forth below.

1. State law.

a. Abandoned Property Law (“APL”) [N.Y. Aband. Prop. Law (McKinney)].

U.S. Claims Services, Inc. v. New York State Dept. of Audit and Control, Office of the State Comptroller, 23 Misc.3d 923, 873 N.Y.S.2d 897 (Sup. Ct. Albany County 2009) (holding that the value of abandoned property, including value ranges, is exempt from disclosure under Abandoned Property Law § 1401).

b. Civil practice law and rules ("CPLR") [N.Y. Civ. Prac. L. & R. (McKinney)].

M. Farbman & Sons v. New York City, 62 N.Y.2d 75, 464 N.E.2d 437, 476 N.Y.S.2d 69 (1984) (holding that CPLR Article 31 on discovery is not a statute "specifically exempting" public records from disclosure under the FOIL while noting that this holding did not address a possible claimed exemption on the more narrow basis of privilege (CPLR 3101[b]), attorney's work product (CPLR 3103[c]), and material prepared for litigation (CPLR 3101[d]), all of which might fall within the "specifically exempt" category);

Rustin v. Purcell, 103 A.D.2d 827, 478 N.Y.S.2d 64 (2d Dep't 1984) (issue of whether discussion of substance of report waived attorney-client privilege under CRLR 4503);

Sciascia v. City of New York, 96 A.D.2d 901, 466 N.Y.S.2d 74 (2d Dep't 1983) (granting access to investigatory file of the fire marshall's office, rejecting claim of exemption under CPLR);

In Re Estate of Schwartz, 130 Misc.2d 786, 497 N.Y.S.2d 834 (Sup. Ct. 1986) (the fact that investigatory records of the D.A. and police department regarding a possible homicide are exempt under FOIL does not automatically prevent disclosure; the provisions of the CPLR provide a second level of access to the litigant);

Malowsky v. LaPook, No. 10024-25 (Sup. Ct., Albany County, Sept. 27, 1985) (holding that an agency is not the proper party to raise the physician-patient privilege under CPLR 4504);

Mid-Boro Medical Group v. New York City Dep't of Finance, N.Y.L.J., Dec. 7, 1979 (Sup. Ct., Bronx County, 1979) (denying access to memos sent by department attorney to department official as within attorney-client privilege of CPLR 3101 (b)).

Various provisions in the CPLR deal with the fees that county clerks may charge for services that they provide. Section 8019 deals with the preparation of copies, but referred only to copies made on paper. A new paragraph (5) added to section 8019(f) states that the provisions in FOIL dealing with the actual cost of reproducing records "in a medium other than paper" serve as the standard under which county clerks may assess fees for preparing copies of records.

c. Civil rights law [N.Y. Civ. Rights Law (McKinney)].Fappiano v. N.Y. City Police Dep't, 95 N.Y.2d 738, 724 N.Y.S. 2d 685 (2001) (held, exception in Civil Rights Law § 50-b(2)(a), which authorizes disclosure of information that may identify the victim of a sex crime to persons "charged" with a sexual offense, does not apply to convicted sex offenders who submitted FOIL requests for records pertaining to the offenses of which they were convicted, because they had already been convicted of the crimes charged and were therefore outside the scope of the exception);

Daily Gazette Co. v. City of Schenectady, 93 N.Y.2d 145, 688 N.Y.S.2d 472 (1999) (held, records identifying 18 City of Schenectady police officers who were disciplined for engaging in off-duty misconduct exempt from disclosure as personnel records protected by Civil Rights Law § 50-a);

Capital Newspapers Division of Hearst Corp. v. Burns, 67 N.Y.2d 562, 496 N.E.2d 665, 505 N.Y.S.2d 576 (1986) (granting access to sick leave report of police officer, rejecting contention that it was a personnel record exempted from disclosure by Civil Rights Law § 50-a);

Lyon v. Dunne, 180 A.D.2d 922, 580 N.Y.S.2d 803, (3d Dep't 1992), motion for leave to appeal denied, 79 N.Y.2d 758 (1992) (denying access to complaints, reprimands and incidents of misconduct of police officers as records used to evaluate performance toward continued employment which are exempt under Civil Rights law § 50-a);

Prisoners' Legal Services v. New York State Dep't Correctional Services, 138 A.D.2d 712, 526 N.Y.S.2d 526, 73 N.Y.2d 26 (1988) (2d Dep't 1988) (denying legal services agency access to grievance and disciplinary records concerning correction officer under Civil Rights Law § 50-a, even though information was not physically placed in officer's personnel file);

In Re Carnevale, 68 A.D.3d 1290, 891 N.Y.S.2d 495 (3d Dep’t 2009) (documents containing statements of police officers given to investigative body to determine whether discipline against officers was warranted were properly withheld as personal records of a law enforcement agency under Civil Rights Law § 50-a).

Capital Newspapers Div. of Hearst Corp. v. City of Albany, 63 A.D.3d 1336, 881 N.Y.S.2d 214 (3d Dep’t 2009) (“gun tags” identifying officers involved in a police scandal fell within personnel records under Civil Rights Law § 50-a and were therefore exempt under a specific state or federal statute. However, the court ordered the “gun tags” disclosed with identifying information redacted).

Radio City Music Hall Productions v. New York City Police Dep't, 121 A.D.2d 230, 503 N.Y.S.2d 722 (lst Dep't 1986) (granting access to police investigation reports after redacting names and statements of confidential witnesses, with discussion in dissent of right of privacy of victim of sex offense under Civil Rights Law § 50-b);

Gannett Co. v. James, 86 A.D.2d 744, 447 N.Y.S 2d 781 (4th Dep't 1982), appeal dismissed, 56 N.Y.2d 502, 435 N.E.2d 1099, 450 N.Y.S.2d 1023 (1982) (denying access to records containing complaints against police officers and records concerning disciplinary action taken against police officers, holding them confidential under Civil Rights Law § 50-a as personnel records);

Flores v. City of New York, 207 A.D.2d 302, 615 N.Y.S.2d 400 (1st Dept. 1994) (denying access to Internal Affairs Division and Civilian Complaint Review Board as exempt from disclosure pursuant to Civil Right law § 50-a);

Muniz v. Roth, 162 Misc.2d 293, 620 N.Y.S.2d 700 (Sup. Ct. County 1994) (denying access to statements made during confidential hearings conducted pursuant to Executive Law § 6 and Civil Rights Law § 73);

Gannett Co. v. Riley, 161 Misc.2d 321, 613 N.Y.S.2d 559 (Sup. Ct. Monroe County 1994) (denying access to internal investigation and report of disturbance at county jail as personnel records exempt from disclosure under Civil Rights Law § 50-a; redacting the names is not sufficient to protect the confidentiality of records otherwise exempt under § 50-a);

Rome Sentinel Company v. City of Rome, 145 Misc.2d 183, 546 N.Y.S.2d 304 (Sup. Ct. 1989) (Civil Rights Law § 50-a did not prevent disclosure of final determination in fireman's suspension hearing);

Town of Woodstock v. Goodson-Todman Enterprises, 133 Misc.2d 12, 505 N.Y.S.2d 540 (Sup. Ct. 1986) (granting access to charges and proceedings regarding sleeping on duty; rejecting claim of exemption under Civil Rights Law § 50-a);

Alliance for the Preservation of Religious Liberty v. State, N.Y.L.J., April 10, 1979 (Sup. Ct., New York County, 1979) (denying access to records of Attorney General compiled under Executive Law § 63(8) and Civil Rights Law § 73(8));

People v. Morales, 97 Misc.2d 733, 412 N.Y.S.2d 310 (Crim. Ct. 1979) (denying access to records of Civilian Complaint Review Board based on Civil Rights Law § 50-a and ordering in camera review);

People v. Zanders, 95 Misc.2d 82, 407 N.Y.S.2d 410 (Sup.Ct. 1978) (granting access to personnel evaluation records regarding continued employment and promotion under Civil Rights Law § 50-a after in camera review);

People v. Pack, N.Y.L.J., April 27, 1978 (Crim. Ct., New York County, 1978) (denying access to police personnel records on basis of Civil Rights Law § 50-a, but granting access to records of Civilian Complaint Review Board).

Lesher v. Hynes, 80 A.D.3d 611, 914 N.Y.S.2d 264 (2d Dep’t. 2011) (denying access to certain police records since they were expressly exempt under Civil Rights Law §50-b which prohibits disclosure of the name of a victim of a sexual offense).

Canty v. Office of Counsel, 30 Misc.3d 705, 913 N.Y.S.2d 528 (Sup. Ct. Albany County 2010) (holding no application of statutory exemption under Civil Rights Law § 50-a since accident reports were not relevant to continued employment or promotion)

d. County law [N.Y. County Law (McKinney)].

Lyon v. Dunne, 180 A.D.2d 922, 580 N.Y.S.2d 803, (3d Dep't 1992), motion for leave to appeal denied, 79 N.Y.2d 758 (1992) (denying access to autopsy reports under County Law § 677[3]).

Moore v. Santucci, 151 A.D.2d 676, 543 N.Y.S.2d 103, (2d Dep't 1989) (autopsy reports are exempt under County law § 677[3][b]);

Scott v. Chief Medical Examiner, 179 A.D.2d 443, 577 N.Y.S.2d 861 (1st Dep't 1992) (County Law § 677 regarding autopsy report does not apply to New York County, which is wholly contained within a City);

Herald Co. v. Murray, 136 A.D.2d 954, 524 N.Y.S.2d 949 (4th Dep't 1988) (denying access to autopsy reports under County Law § 677[3]);

Bartczak v. Dillon, N.Y.L.J., Nov. 2, 1989 (Sup. Ct. Nassau County, 1989) (County Law § 2207(3) was a "state statute" exempting county attorney's records from FOIL).

Newsday v. O'Brien, No. 23660/87 (Sup. Ct., Nassau County, 1987).

e. Criminal procedure law [N.Y. Crim. P. Law (McKinney)].

Newton v. District Attorney, Bronx County, 186 A.D.2d 57, 588 N.Y.S.2d 269 (1st Dept. 1992) (Grand Jury testimony is specifically exempted from disclosure pursuant to Criminal Procedure Law § 190.25(4));

In re Thomas, 131 A.D.2d 488, 515 N.Y.S.2d 885 (2d Dep't 1987) (holding that a presentence report is confidential unless sentencing court authorizes its release under Criminal Procedure Law §§ 390.50, 390.60);

Planned Parenthood of Westchester v. Town Board of the Town of Greenburgh, 154 Misc.2d 971, 587 N.Y.S.2d 461 (Sup. Ct. 1992) (photos of arrestees sealed under Criminal Procedure Law § 160.55(1)(d) are not accessible under FOIL);

Maffeo v. New York Organized Crime Task Force, Index No. 92-18502 (Sup. Ct., Westchester County, April 14, 1993) (denying disclosure of applications made and warrants issued for eavesdropping and video surveillance pursuant to CPL § 700.55(1));

Journal Publishing Co. v. Office of the Special Prosecutor, 131 Misc.2d 417, 500 N.Y.S.2d 919 (Sup. Ct. 1986) (tape recordings made in course of criminal investigation held confidential when sealed under Criminal Procedure Law § 160.50);

King v. Dillon, No. 20859/84 (Sup. Ct., Nassau County, Dec. 19, 1984) (minutes of village board meeting available under FOIL even though transferred to District Attorney under Grand Jury subpoena; Criminal Procedure Law § 190.25 prohibits disclosure of Grand Jury proceedings but does not "eradicate records otherwise public in nature").

f. Domestic relations law [N.Y. Dom. Rel. Law (McKinney)].

In re Radov, N.Y.L.J., Oct. 19, 1981 (Sup. Ct., New York County, 1981) (birth records identifying natural parents held confidential under Domestic Relations Law § 114, Public Health Law § 4138(3)(d), Social Services Law § 372(4));

Gannett Co. v. City Clerk's Office, City of Rochester, 157 Misc.2d 349, 596 N.Y.S.2d 968 (Sup. Ct. Monroe County 1993), aff'd, 197 A.D.2d 919, 604 N.Y.S.2d 848 (4th Dept. 1993) (Domestic Relations Law § 19 does not exempt the names of marriage license applicants).

g. Education law [N.Y. Educ. Law (McKinney)].

Matter of Terry D, 182 A.D.2d 406 (1st Dep't 1992), rev'd on other grounds, 81 N.Y.2d 1042, 619 N.E.2d 389, 601 N.Y.S.2d 452 (1993) (confidentiality provisions of Education Law § 3212-a cannot defeat rights of criminal defendants to discover exculpatory evidence);

Murphy v. State Educ. Dept., 148 A.D.2d 160, 543 N.Y.S.2d 70, (1st Dep't 1989) (records of investigation of professional misconduct are confidential pursuant to Education Law § 6510(8) except from the order of a court in a pending action or proceeding).

LaRocca v. Board of Education, 159 Misc.2d. 90, 602 N.Y.S.2d 1009 (Sup. Ct. Nassau County 1993) (denying access to records relating to settlement of a disciplinary matter as protected by Education Law § 3020-a, 8 N.Y.C.R.R. Part 82.9; finding such documents to constitute employment records the release of which would constitute an unwarranted invasion of privacy), modified, LaRocca v. Board of Education, 220 A.D.2d 424, 632 N.Y.S.2d 576 (2d Dept. 1995) (holding that agency must release those portions of documents that do not constitute an "employment history" and ordering disclosure of redacted settlement agreement).

Village Times v. Three Village Cent. School Dist., No. 20325-83 (Sup. Ct., Suffolk County, March 21, 1984) (confidentiality provisions of Education Law § 3020-a do not extend to final determination);

Herald Co. v. School District, 104 Misc.2d 1041, 430 N.Y.S.2d 460 (Sup. Ct. 1980) (name of and charges lodged against tenured teacher found specifically exempt from disclosure by Education Law § 3020-a).

h. Executive law [N.Y. Exec. Law (McKinney)].

John v. New York State Ethics Commission, 178 A.D.2d 51, 581 N.Y.S.2d 882 (3d Dept. 1992) (Executive Law § 94(17)(a) permits respondent to prohibit the photocopying of annual financial disclosure statements while permitting the inspection of such documents);

Jordan v. Hammock, 86 A.D.2d 725, 447 N.Y.S.2d 44 (3d Dep't 1982) (denying access to certain records of Parole Board based upon confidentiality provisions of Executive Law § 259-k and implementing regulations);

Rold v. Cuomo, No. 1909-88 (Sup. Ct., Albany County, May 31, 1988) (granting access to registers required to be maintained by the Governor pursuant to Executive Law § 5(3) concerning applications for pardons, commutations, or executive clemency);

Muniz v. Roth, 162 Misc.2d 293, 620 N.Y.S.2d 700 (Sup. Ct. 1994) (denying access to statements made during confidential hearings conducted pursuant to Executive Law § 6 and Civil Rights Law § 73);

Robertson v. Chairman of Bd. of Parole, 122 Misc.2d 829, 471 N.Y.S.2d 1015 (Sup. Ct. 1984), appeal dismissed, 112 A.D.2d 333, 491 N.Y.S.2d 989 (2d Dep't 1985), rev'd in part and dismissed in part, 67 N.Y.2d 197, 492 N.E.2d 762, 501 N.Y.S.2d 634 (1986) (denying access to certain records of Parole Board based upon Executive Law § 259-k and implementing regulations);

Alliance for the Preservation of Religious Liberty v. State, N.Y.L.J., April 10, 1979 (Sup. Ct., New York County, 1979) (denying access to records of the Attorney General compiled under Executive Law § 63 (8) and Civil Rights Law § 73 (8)).

i. General business law [N.Y. Gen. Bus. Law (McKinney)].

Ragusa v. New York State Dept. of Law, 152 Misc.2d 602, 578 N.Y.S.2d 959 (Sup. Ct. 1991) (Attorney General is authorized to disclose investigation of monopolies under General Business Law § 343).

j. Judiciary law [N.Y. Jud. Law (McKinney)].

Newsday v. Sise, 120 A.D.2d 8, 507 N.Y.S.2d 182 (2d Dep't 1986), aff'd, 71 N.Y.2d 146, 518 N.E.2d 930, 524 N.Y.S.2d 35 (1987) (names and addresses of jurors derived from questionnaire held confidential by Judiciary Law § 509-a).

k. Labor law [N.Y. Lab. Law (McKinney)]

Messina v. Lufthansa German Airlines, 83 A.D.2d 831, 441 N.Y.S.2d 557 (2d Dep't 1981) (holding that Labor Law § 537 would not restrict access to certain unemployment insurance records, but denying access on privacy grounds);

Clegg v. Bon Temps, Ltd., 114 Misc.2d 805, 452 N.Y.S.2d 825 (Civ. Ct. 1982) (information acquired for unemployment insurance purposes held confidential pursuant to Labor Law § 537).

Mullady v. Bogard, 153 Misc.2d 1018, 583 N.Y.S.2d 744 (Sup. Ct. 1992) (denying access to autopsy reports of the Chief Medical Examiner of the City of New York as exempt pursuant to New York City Charter 557(g)); Matter of Mitchell, N.Y.L.J. September 16, 1994 (Sup. Ct., New York County, 1994) (denying access to audiotape and autopsy worksheets pursuant to § 557(g) of the New York City Charter).

l. Penal law [N.Y. Penal Law (McKinney)].

Kwitny v. McGuire, 53 N.Y.2d 968, 424 N.E.2d 546, 441 N.Y.S.2d 659 (1981) (granting access to pistol license applications under FOIL and Penal Law § 400.00(5));

New York News Inc. v. Office of the Special State Prosecutor of the State of New York, 153 A.D.2d 512, 544 N.Y.S.2d 151 (1st Dep't 1989) (denying access to investigative information of leak from Grand Jury under FOIL and Penal Law § 215.70 which prohibits disclosure of matters before a Grand Jury).

m. Personal privacy protection law [N.Y. Pub. Off. Law, art. 6-A (McKinney)].

Records contained in an indexed computer data base may be protected by the New York State Personal Privacy Protection Law ("PPPL") which was enacted to protect against the danger to personal privacy posed by modern computerized data collection and retrieval systems. N.Y. Pub. Off. Law art. 6-A (McKinney). See Spargo v. New York State Commission on Government Integrity, 140 A.D.2d 26 (3d Dep't 1988).

Lochner v. Surles, 149 Misc.2d 243, 564 N.Y.S.2d 673 (Sup. Ct. 1990) (consideration of case law under FOIL is appropriate in analyzing the PPPL);

Matter of Building a Better New York Committee v. New York State Commission on Government Integrity, 138 Misc.2d 829, 525 N.Y.S.2d 488 (Sup. Ct. 1988);

George v. New York Newsday, N.Y.L.J., October 4, 1994 (Sup. Ct. New York County, 1994) (Personal Privacy Protection Law provides a civil cause of action only against a government agency which is releasing private material; it is inapplicable to private parties).

n. Public authorities law [N.Y. Pub. Auth. Law (McKinney)]

Reape v. State of New York Metropolitan Transportation Authority, 185 A.D.2d 275, 586 N.Y.S.2d 23 (2d Dep't 1992) (denying access to Transit Adjudication Bureau records under Public Authorities Law § 1209-a[4][f]).

o. Public health law [N.Y. Pub. Health Law (McKinney)].

In 1988, Public Health Law § 4174(1)(a) was amended to require the Commissioner of Health to issue death certificates or transcripts only when they are required for certain enumerated purposes. This amendment has exempted death certificates from FOIL requests.

Short v. Board of Managers, 57 N.Y.2d 399, 442 N.E.2d 1235, 456 N.Y.S.2d 724 (1982) (denying access to certain medical records based on the confidentiality provisions of Public Health Law § 2803-c(3)(f) and § 2805-g(3) and Social Services Law § 369(3), and holding that deletion of identifying details as a means of removing the confidentiality requirements does not extend to records subject to specific statutory exemption);

John P. v. Whalen, 54 N.Y.2d 89, 429 N.E.2d 117, 444 N.Y.S.2d 598 (1981) (denying access to patient records and interviews obtained by State Board of Professional Medical Conduct during an investigation of charges of professional misconduct, holding such records confidential under Public Health Law § 230);

Williams & Connolly v. Axelrod, 139 A.D.2d 806, 527 N.Y.S.2d 113 (3d Dep't 1988) (denying access to certain documents relating to examination of town residents for chemical exposure on the basis of Public Health Law § 206(1)(j));

Miller v. Dep't of Health, 91 A.D.2d 975, 457 N.Y.S.2d 564 (2d Dep't 1983) (denying access to records of a patient abuse investigation of a nursing home under Public Health Law § 2803-d as well as other FOIL exemptions);

St. Joseph's Hospital v. Axelrod, 74 A.D.2d 698, 425 N.Y.S.2d 669 (3d Dep't 1980), appeal denied, 49 N.Y.2d 706, 405 N.E.2d 711, 428 N.Y.S.2d 1026 (1980) (holding that hospital's uniform financial reports are available under FOIL and Public Health Law § 2805-a);

Marshall v. State Bd. for Professional Medical Conduct, 73 A.D.2d 798, 423 N.Y.S.2d 721 (4th Dep't 1979), appeal denied, 49 N.Y.2d 709, 406 N.E.2d 1354, 429 N.Y.S.2d 1026 (1980) (denying access to requesting physician of records pertaining to charges of professional misconduct on basis of Public Health Law § 230);

In re Radov, N.Y.L.J., Oct. 19, 1981 (Sup. Ct., New York County, 1981) (birth records identifying natural parents held confidential under Domestic Relations Law § 114, Public Health Law § 4138(3)(d), Social Services Law § 372(4)).

p. Public officers law [N.Y. Pub. Off. Law (McKinney)].

Scott v. Records Access Officer, 65 N.Y.2d 294, 480 N.E.2d 1071, 491 N.Y.S.2d 289 (1985) (granting partial access to car accident reports filed by police department; Public Officers Law § 66-a which predates the FOIL and which opens accident records to members of public "having an interest therein" cannot be read to impose additional restrictions on access);

Kooi v. Chu, 129 A.D.2d 393, 517 N.Y.S.2d 601 (3d Dep't 1987) (confidentiality provisions of Tax Law §§ 384, 697 and Public Officers Law § 96 were not violated by disclosure of name of state employee who failed to file tax return);

Bensing v. LeFevre, 133 Misc.2d 198, 506 N.Y.S.2d 822 (Sup. Ct. 1986) (granting access to names of inmates housed in special unit, rejecting claim of exemption under Public Officers Law § 95).

q. Real property tax law [N.Y. Real Prop. Tax Law (McKinney)].

Property Valuation Analysts Inc. v. Williams, 164 A.D.2d 131, 563 N.Y.S.2d 545, (3d Dep't 1990) (Real property transfer reports are confidential under Real Property Tax law § 574[5]).

In the 2008 amendments, a new subparagraph (iv) added to section 89(2)(c) specifies that disclosure of records involving real property, such as assessment records critical to enable individuals to ascertain the fairness of their real property tax assessment, would not constitute an unwarranted invasion of personal privacy if disclosed.

r. Real property transfer tax law of New York City (1989 N.Y. Laws ch. 714, § 10).

Brownstone Publishers Inc. v. New York City Department of Finance, 167 A.D.2d 166, 561 N.Y.S.2d 245 (1st Dep't 1990) (in 1989 the state legislature amended section 11-2115 of the Administrative Code of the City of New York to deem it a state statute for purposes of FOIL to enforce its "secrecy" provision).

s. Social services law [N.Y. Soc. Serv. Law (McKinney)].

Short v. Board of Managers, 57 N.Y.2d 399, 442 N.E.2d 1235, 456 N.Y.S.2d 724 (1982) (denying access to certain medical records based on the confidentiality provisions of Public Health Law §§ 2803-c(3)(f) § 2805-g(3) and Social Services Law § 369(3), and holding that deletion of identifying details as a means of removing the confidentiality requirements does not extend to records subject to specific statutory exemption);

Sam v. Sanders, 55 N.Y.2d 1008, 434 N.E.2d 710, 449 N.Y.S.2d 474 (1982) (limiting access to records of foster care under Social Services Law § 372);

Wise v. Battistoni, 208 A.D.2d 755, 617 N.Y.S.2d 506 (2d Dept. 1994) (all Department of Social Services records relating to a child are confidential and pursuant to Social Services Law §§ 372(3) and (4) are not subject to disclosure under FOIL);

Newsday Inc. v. State of New York Commission on Quality of Care for the Mentally Disabled, No. 01-92-ST3734 (Sup. Ct., Albany County, December 22, 1992) (SSL § 422 precludes disclosure of investigative files of the Commission on Quality Care for the Mentally disabled with respect to reports of child abuse except for bona fide research purposes);

New York News Inc. v. Grinker, 142 Misc.2d 325, 537 N.Y.S.2d 770, (Sup. Ct. 1989) (foster care records are confidential under Social Services law § 372 and child abuse reports are confidential under Social Services law § 422);

Malowsky v. D'Elia, 160 A.D.2d 798, 163 N.Y.S.2d 479, (2d Dep't 1990) (medical histories of a child in foster care and of his natural parents shall be provided under Social Services law § 373(a) after deletion of identifying details);

New York Ass'n of Homes & Services for the Aging v. Axelrod, No. 7414-85 (Sup. Ct., Albany County, Aug. 18, 1985) (Social Services Law § 369(3) precludes disclosure of Patient Review Instruments on Medicaid patients);

In re Radov, N.Y.L.J., Oct. 19, 1981 (Sup. Ct., New York County, 1981) (birth records identifying names of natural parents held confidential under Domestic Relations Law § 114, Public Health Law § 4138(3)(d), Social Services Law § 372(4)).

t. Tax law [N.Y. Tax Law (McKinney)].

Kooi v. Chu, 129 A.D.2d 393, 517 N.Y.S.2d 601 (3d Dep't 1987) (confidentiality provisions of Tax Law §§ 384 and 697 and Public Officers Law § 96 were not violated by disclosure of name of state employee who failed to file tax return, because confidentiality is accorded to information submitted by taxpayers).

u. Transportation law [N.Y. Transp. Law (McKinney)].

Newsday Inc. v. State Dep't of Transportation, 5 N.Y. 3d 84, 800 N.Y.S. 2d 67 (2005) (held, priority lists of hazardous intersections and locations compiled by DOT not exempt from disclosure under FOIL pursuant to federal statute);

Bloomberg v. Hennessy, 99 Misc.2d 958, 417 N.Y.S.2d 593 (Sup. Ct. 1979) (accident reports prepared by Department of Transportation are not exempt from disclosure under Transportation Law § 117 and, thus, subject to public access under the FOIL);

McAuley v. Commissioner, 99 Misc.2d 83, 415 N.Y.S.2d 389 (Sup. Ct. 1979) (granting access to departmental accident records under FOIL and Transportation Law § 83, except for notice of accident filed by bus company under Transportation Law § 142).

u. Election Law [N.Y. Elec. Law (McKinney].

Waldman v. Vill. of Kiryas Joel, 31 A.D.3d 569, 819 N.Y.S.2d 72 (2d Dep’t 2006) (denying disclosure on the basis that under New York Election Law § 3-220(2), certain election records may not be publicly disseminated, and are subject only to inspection).

2. Federal law.

Newsday Inc. v. State Dep't of Transportation, 5 N.Y.3d 84, 800 N.Y.S.2d 67 (2005) ("We hold that 23 U.S.C. § 409, which provides that certain documents relating to traffic safety shall not be subject to discovery in lawsuits arising out of traffic accidents, does not exempt these documents from disclosure under [FOIL].");

Shedrick v. Coughlin, 176 A.D.2d 391, 574 N.Y.S.2d 98, (3d Dep't 1991), appeal dismissed, 79 N.Y.2d 896, 590 N.E.2d 244, 581 N.Y.S.2d 659 (denying access to Alcoholics Anonymous records as exempt under Public Health Service Act § 544(a), as amended 42 U.S.C. § 290dd-3(a)).

Board of Education v. Regan, 131 Misc.2d 514, 500 N.Y.S.2d 978 (Sup. Ct. 1986) (denying access to computer list of students who might be eligible for student aid, based upon federal Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g);

Krauss v. Nassau Community College, 122 Misc.2d 218, 469 N.Y.S.2d 553 (Sup. Ct. 1983) (denying access to names and addresses of students as precluded by federal Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g).

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Disgraced Former Principal Elif Gure-Perez Is Appointed Executive Director of The NYC DOE Office of School Improvement-State and Federal Education Policy

Ok, I'm stumped. Mayor De Blasio and Chancellor Carmen Farina appoint a person to oversee the State and Federal policies that she was found guilty of violating by a jury in federal court?

I think we are owed a detailed explanation of this one. Please describe your reasons, Carmen and Bill!

Betsy Combier

Weinstein Allows Reargument on Dismissed Case
Oct, 09 2014

Judge Jack Weinstein
A judge has given an assistant principal a second chance to argue that she was a victim of retaliation for refusing to frame African-American teachers for disciplinary violations.Saying he was acting to "correct a possible injustice," Eastern District Judge Jack Weinstein (See Profile) agreed to allow reargument on the 1981 retaliation claim of Christina Villavicencio that she was punished by P.S. 316 principal Elif Gure-Perez for failing to write false reports.
Weinstein said case law on discrimination was overlooked, and he cited cases not mentioned by either party.
He had granted a motion for summary judgment on Oct. 2 in favor of Gure-Perez and the New York City Department of Education in Villavicencio v. Gure-Perez, 14-CV-0889.
He made that decision on the basis of Leibovitz v. N.Y.C. Transit Authority, 252 F.3d 179 (2d Cir. 2001), where the U.S. Court of Appeals for the Second Circuit said a plaintiff had no cause of action for discrimination that she did not observe herself.
But Weinstein reversed course on Wednesday, issuing an order and withdrawal of dismissal, saying that a line of U.S. Supreme Court and Second Circuit cases shows that a 42 U.S.C. ?1981 cause of action could be pursued against a superior where an employee suffers retaliation for trying to prevent discrimination by that superior.
Villavicencio worked as an assistant principal on probationary status from 2008 to 2009 at P.S. 316, where Gure-Perez allegedly told her to "aggressively supervise" older staff members--all but one of whom was African-American--to "shake them up."
Gure-Perez allegedly instructed Villavicencio to focus on two employees, give them "unsatisfactory" ratings and use "fear" and "intimidation" against a third teacher she wanted forced into retirement.
Villavicencio refused, and in her complaint, she charged that once Gure-Perez realized she would not take part in "her plan to use trumped-up write-ups, fraudulent evaluations and false pretenses to get rid of older African American staff at P.S. 316," Gure-Perez created "a false paper trail" to get rid of Villavicencio.
Gure-Perez placed seven disciplinary letters in her file on a single day on March 17, 2009. Nine days later, Villavicencio received her first unsatisfactory rating of her career along with a notice of discontinuance of her probationary status.
When she was reassigned to another school, P.S. 161, the principal, who was a friend of Gure-Perez's, allegedly gave her a hard time and threatened disciplinary action. Villavicencio was advised by a United Federation of Teachers representative to leave the school because the principal and her friends "are after you." She went on medical leave for anxiety and depression.
Weinstein said that neither side in the summary judgment phase of the case cited any cases that he said favored Villavicencio. Among them are Thompson v. N. Am. Stainless, LP, 131 S.Ct. 863 (2011) where the Supreme Court said third-party reprisals are not categorically excluded from the anti-retaliation provisions of Title VII, and CBOCS W., Inc. v. Humphries, 553 U.S. 442, where the court said a ?1981 claim can be made where a person suffers retaliation for trying to help a person who was the target of discrimination.
The Supreme Court also said in Sullivan v. Little Hunting Park, Inc. 396 U.S. 229 (1969), that a person can sue under the Civil Rights Act if he or she could show they were "punished for trying to vindicate the rights of minorities." And the Second Circuit held in Albert v. Carovano, 851 F.2d 561 (2d Cir. 1988) that "non-minority plaintiffs may bring an action under ?1981 against one who retaliated against them because they did not engage in purposeful discrimination."
Weinstein said that these cases and more "provide grounds for distinguishing the decision in Leibowitz" which was his basis for granting the motion for summary judgment.
In an interview Thursday, Weinstein said that after issuing the decision, "we thought about it and did further research" on the matter that led to the withdrawal of dismissal.
He set Oct. 23 for reargument.
Assistant Corporation Counsel Leah Schmelzer argued for the Department of Education.
Kenechukwu Okoli represents Villavicencio.
Okoli said Thursday he had argued that Liebovitz did not apply and the judge had to look at the totality of the circumstances in deciding retaliation. He said he did not cite the cases, but argued nonetheless that a person who refused to participate in discrimination can state a case of retaliation.
"I'm happy that the judge took the time to take a second look at the case," he said.

Elif Gure-Perez

Executive Director, NYC Department of Education
  1. NYC Department of Education, Office of School Improvement-State and Federal Education Policy,
  2. New York University, Steinhardt School of Culture and Human Development
  1. NYC Department of Education, Office of School Quality
Edit experience
  1. New York University


Adjunct Professor

New York University, Steinhardt School of Culture and Human Development
– Present (13 years)New York, New York
Design and deliver graduate level courses regarding study of approaches, methods, and techniques used in teaching language skills and developing cross-cultural understandings to second/foreign language learners at the elementary and secondary levels. The emphasis of the courses include curriculum development, language development through development stages and content areas, language testing, lesson planning, and micro-teaching.

Deputy Executive Director

NYC Department of Education, Office of School Quality
(2 years)new york, new york
Lead cross-functional initiatives including NYC Principal Performance Evaluations, School Quality Reviews and Formative Quality Reviews. Manage professional development design and facilitation for quality reviewers and principal performance evaluators.

Director for School Quality

NYC Department of Education, Office of Academic Quality
(1 year 1 month)New York, NY
Lead design, implementation and delivery of Quality Review (QR) trainings for NYC Quality Reviews. Implement and deliver QR orientations for principals across networks. Oversee field support and quality assurance for QR process and reports. Facilitate professional development for quality reviewers. Oversee and guide each QR to ensure that they are adequately staffed and supported, resulting in high quality feedback to schools for continued school improvement.


NYC Department of Education
(3 years)
Lead and foster a culture of improvement through personal leadership. Utilize multiple sources of data to set high learning goals and increase student achievement. Leverage deep knowledge of curriculum, instruction and assessment to improve student learning. Develop staff, share school leadership and build strong school community. School received and sustained a score of A on the NYC Progress Report Card and Good Standing on the NYS School Report Card.

Achievement Manager

NYC Department of Education
(2 years)
Implement accountability measures and instructional systems designed to assist schools in improving student achievement. Assist principals in capturing and disseminating best practices around school improvement. Design and present school and network level trainings on the use of diagnostic and formative assessment tools. Conduct and facilitate instructional rounds for quality review assistance. Support principal in formulating and achieving performance review targets as well as facilitate collaborative action research projects.

Instructional Specialist

NYC Department of Education
(1 year)Region 7
Design and implement curriculum and professional development, federal, state and city compliance monitoring and supervision systems as well as instructional support for teachers, administrators and parents of English Language Learners in NYC Department of Education schools.

Title VII Federal Grants Director

NYC Department of Education
(2 years)Region 7
Manage the implementation and evaluation of system-wide discretionary federal grants projects including the design, implementation and coordination of a teacher training curriculum for a co-sponsored Master’s Degree Program for pre and in-service teachers as well as supplemental educational programs for immigrant students and families in NYC schools.

DOE names accused racist to ‘school improvement’ post

, January 11, 2015
Elif Gure-Perez was named as an executive director in the DOE’s Office
of School Improvement.

The de Blasio administration promoted a disgraced principal to a top Department of Education post despite multiple charges that she’s racist, The Post has learned.
Elif Gure-Perez, who was named in June as an executive director in the DOE’s Office of School Improvement, created a “hostile, race-based work environment,” a Manhattan federal court found months before her appointment.
Gure-Perez, the former principal of PS 316 in Prospect Heights, Brooklyn, called one staffer the N-word to her face; referred to an African-American teacher as “Shining,” an insulting term for a shoe shiner; and spoke of buying a bright orange blouse to wear to school “since I know black people like loud colors,” witnesses testified.
She denied the accusations.
In her new post, Gure-Perez is assigned to support 14 high schools in the mayor’s $150 million School Renewal Program for struggling schools, according to DOE spokesman Will Mantell. Her salary is $144,195.
Asked why Chancellor Carmen Fariña promoted Gure-Perez in light of the complaints, the DOE had no comment.
Former PS 316 parent coordinator Carolyn Lovejoy testified she broke down in tears when Gure-Perez yelled at her, “Get out of my office, you n—-r, get out!”
In March, a Manhattan jury found Gure-Perez liable for civil damages, awarding Lovejoy $110,000, which the city is paying.
An assistant principal who testified in Lovejoy’s case, Martin Williams, said Gure-Perez repeatedly used the phrase “black ass” in discussing teachers, and told him to “crack the whip.”
“I felt belittled, and as a black person and an astute student of history, it smacks of racism to me,” Williams said.
Williams said he complained to then-Chancellor Joel Klein after Gure-Perez made reference to a story called “Old Black Joe,” which teachers considered a negative stereotype, at a faculty meeting.
Within 24 hours, Gure-Perez sent Williams to the infamous rubber room, he said, where he sat for four months on “trumped-up charges.”
In a related suit, Elizabeth Butler, a veteran teacher trainer at PS 316, accused Gure-Perez of repeatedly saying she sat on her “old ass.”
“Total disrespect and constant embarrassment” drove Butler to retire, she says.
In another pending suit, then-assistant principal Christina Villavicencio claims Gure-Perez punished her for defying orders to give bogus “Unsatisfactory” ratings to older African-American teachers, and to use “fear and intimidation” tactics to drive them out.
Villavicencio, who is seeking $1 million in damages, said Gure-Perez slapped her with seven disciplinary letters in one day, gave her the first U-rating of her career and fired her.
“From the moment Villavicencio refused to file false reports on these African-American teachers, Gure-Perez started a campaign to terminate Villavicencio’s employment as assistant principal,” Manhattan federal Judge Jack Weinstein wrote in a November ruling. The case is set for trial on Jan. 27.
Gure-Perez, 40, who immigrated from Turkey in 2001, got her bachelor’s degree from Istanbul University and a master’s degree in education from NYU. She joined the DOE in 2002 and quickly took administrative posts. She was principal of PS 316 from 2008 to 2011, then was moved to DOE headquarters.
On her Twitter page, Gure-Perez has supported the policies of Mayor de Blasio, including curbing co-locations of charter schools in DOE buildings. Last February, she retweeted a article headlined “Fariña’s game plan to undo (and redo) the Bloomberg years.”
After her termination, Villavicencio went back to teaching, but became principal of PS 197 in Far Rockaway, Queens, in 2012. She declined to comment. Lovejoy said only, “It’s been horrible.”

The Rise in Complaints Against School Employees (That Means Principals, Too) Is Due To Social Media

When Carl (Campanile, NYPOST) called, I told him what I thought about the rise in complaints against school employees: secret recordings and social media.

New York State is a one party state. This means that as long as you are in a conversation with someone, you can secretly record the discussion and you do not have to tell the person/people with whom you are speaking that you are recording. You should assume that whenever anyone speaks with you at your school, especially in an office such as a Principal or AP, you are being recorded. Return the favor. Tape every meeting secretly and be creative.

I remember a teacher who recorded everyone, and the principal thought she was doing it, so whenever she entered the principal's office, she was given a pat down. So she kept the tape recorder in her bra or her sock.

You cannot secretly record any conversation in which you are not a party. Take a look also at the penal code for eavesdropping. You can, and should be documenting everything said to you, for your records. And remember that you are also legally allowed to secretly tape telephone calls in which you are a party.

Now that the cell phone ban is ending for all public school students, there will be more chances for a hidden tape recorder/phone to get an educator/principal/AP/Dean/etc saying something that is harassing, improper, or criminal.

If you look at the cell phone ban for a minute, consider this: the schools with high-scoring kids (NEST+M, La Guardia, Stuyvesant) never told students they could not bring their phones to school. Students were told  "don't have anyone see your phone in class, keep it in your backpack/bag". I know, because my daughters always had their phones with them, and went to those schools. My oldest daughter was a student at Stuyvesant on 9/11. There was no way I would let her on the subway or at school without her cellphone.

On the other side of the coin are the schools where the demographics are very different. Take Wadleigh HS on West 114th Street in Manhattan. Harlem. Parents told me that when the phone scanner officers were stationed at the door, parents and students - mostly African-American - were body searched. Who decides?

My  thoughts about why the cell phone ban was put in place was not to protect the learning experience but to guard against student exposure of employee misconduct.

Let's see what happens now that students throughout the city will be able to carry their phones inside the school building.

Betsy Combier

Probes into NYC teachers decrease, despite record complaints

Investigators were flooded with a record number of complaints against school employees last year — but pursued fewer cases against them, records show.
Investigators received 5,287 complaints in 2014, according to a report released Thursday by Special Schools Investigator Richard Condon.
But his office completed only 714 investigations, 123 fewer than last year, when there were 4,335 complaints.
Regina Romain, a spokeswoman for Condon, said many of the complaints were frivolous or did not fall under his purview.
“We do not have any control over the amount of complainants that call our office,” she said.
“We open investigations based on the severity of the allegations. Although the amount of complaints may increase, the allegations may not be as serious.”
One advocate who helps defend teachers in disciplinary cases attributed the complaint surge to an explosion in the use of high-tech gadgets and social media.
“Everybody is carrying around a tape recorder” in the form of a smartphone, said legal aide Betsy Combier. “People know they can secretly tape. It’s a social-media thing.”
If anything, she said, the number of complaints will continue to go up because “now students will be allowed to carry their phones in school.”
One Brooklyn principal said it has become easier to file complaints through the 311 hot line.
“Administrators are being called in and hearing, ‘We got a 311 complaint,’ ” said Dakota Keyes, principal of PS 272 in Canarsie.
She said the situation is frustrating because many of the accusations are unfounded.
Keyes recalled one incident in which her students held fund-raisers for a classmate who was hospitalized.
When she delivered the money to the student’s parents in front of numerous eyewitnesses, someone complained.
“There was a 311 call saying the funds were not used for what was intended,” said Keyes.
“It’s annoying. Sometimes the complaints are mean-spirited.”
Investigators discovered evidence of sexual misconduct in 52 out of 581 complaints received that had a sexual component.
The cases included an after-school aide in PS 300 in The Bronx who allegedly abused two 8-year-old female students; Brooklyn Tech teacher Sean Shaynak’s alleged relations with seven girls in his classes; and a school investigator who sext-messaged a teacher he was investigating.
Few cases resulted in dismissals.
Condon recommended that the city fire only 63 school employees and never rehire 115 others who left on their own.