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Wednesday, April 22, 2015

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:

From:   Freeman, Robert (DOS)
Sent:    Wednesday, May 15, 2013 3:00 PM
Cc:       ''
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.
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

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