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| Joe Baranello |
Congratulations to the New York POST (NYPOST) newspaper, and reporters Susan Edelman, Aaron Short, and Yoav Gonen, for filing a petition against the NYC DOE for FOI Law violations! As an Editor, writer, and a person who files countless FOI requests of the Department I know how the NYC DOE illegally denies access to documents, videos, letters and other information they simply do not want the public to see. The disdain of the NYC DOE for the law is shocking.
See my FOIL request denials:
The Second "Who Are You Kidding Award" Goes To Dennis Walcott
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"
NYC Department of Education Attorney Joseph Baranello Uses Facebook To Comment
About The "Douchebags" On The L Train
Editor Betsy
Combier
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, The NYC Public Voice
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, The NYC Public Voice
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The NY POST Sues The New York City Department of Education
For Freedom of Information (FOIL) Violations
Congratulations to the New York POST (NYPOST) newspaper, and reporters Susan Edelman, Aaron Short, and Yoav Gonen, for filing a petition against the NYC DOE for FOI Law violations!
As an Editor, writer, and a person who files countless FOI requests of the Department I know how the NYC DOE illegally denies access to documents, videos, letters and other information they simply do not want the public to see. The disdain of the NYC DOE for the law is shocking.
Betsy Combier
Editor, Parentadvocates.org
President, ADVOCATZ/Theater Kids, Inc.
betsy.combier@gmail.com
Here is the Petition:
PLEASE TAKE NOTICE that, upon the annexed Verified Petition and Complaint, the exhibits attached thereto, the Affidavit of Jeremy A. Chase, and the memorandum of law in support of the Petition, Petitioners NYP Holdings, Inc., Susan Edelman, Aaron Short, and Yoav Gonen will move this Court at the New York State Supreme Court, New York County Courthouse, located at 60 Centre Street, New York, New York 10007, in the Motions Submission Part, Room 130, at 9:30 a.m. on September 16, 2016, or as soon thereafter as counsel may be heard for an Order and Judgment pursuant to Article 78 of the Civil Practice Law and Rules and Section 3001 of the Civil Practice Law and Rules for the relief demanded in the annexed Verified Petition and Complaint.
PLEASE TAKE FURTHER NOTICE that, pursuant to N.Y.C.P.L.R. § 7804,
Respondents’ answer, if any, must be served upon the undersigned by September 12, 2016 and
Petitioners’ reply, if any will be served on September 15, 2016.
Petitioners-Plaintiffs NYP Holdings, Inc. (“NYP”), Susan Edelman, Aaron Short, and Yoav Gonen (collectively, “Petitioners”), for their verified petition for judgment pursuant to Article 78 of the New York Civil Practice Law and Rules, and their complaint seeking a declaratory judgment pursuant to N.Y.C.P.L.R. § 3001, by and through their undersigned counsel, respectfully allege as follows:
PRELIMINARY STATEMENT
1. This hybrid Article 78 petition and Complaint against the New York City Department of Education and Carmen Fariña, as Chancellor of the New York City Department of Education (collectively “Respondents” or “DOE”) arises out of Respondents’ repeated failure to determine whether to grant or deny access to information Petitioners have requested as is required by the Freedom of Information Law (“FOIL”). Instead, Respondents have engaged in a pattern and practice of unilaterally granting themselves repeated extensions of time to respond to FOIL requests ad infinitum, thereby flouting their duty under FOIL to make their records available to the public.
2. FOIL requires that within five business days of the receipt of a request for records, an agency must “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.” N.Y. Pub. Off. Law § 89(3)(a) (emphasis added).
Joe Baranello
3. Since September 2014, Petitioners have submitted a number of FOIL requests to DOE. In each case, DOE Central Records Access Officer & Agency Attorney Joseph A. Baranello has acknowledged receipt of the request by letter and stated that “a response is currently anticipated by [x date].”
4. Not once, however, have Respondents granted or denied the request by the anticipated date, and instead Mr. Baranello has sent the following form letter, again and again:
This letter concerns the above-referenced Freedom of Information Law (FOIL) request. Pursuant to section VI.B of Chancellor’s Regulation D-110, due to the volume and complexity of requests we receive and process, and to determine whether any records or portions thereof will be subject to redactions permitted under Public Officers Law §87(2), additional time is required to respond substantively to your request. Accordingly, a response is currently anticipated by [x date].
(hereinafter the “Form Delay Letter”).
5. This Form Delay Letter offers no legally-cognizable explanation for DOE’s unilateral delays in determining whether it will grant or deny a request. Nor does the Form Delay Letter offer an approximate date that is “reasonable under the circumstances of the request.” N.Y. Pub. Off. Law § 89(3)(a). Instead, Respondents completely ignore the circumstances of the request and, without any consideration of how long the determination of whether to grant or deny a particular request should reasonably take or the particular factors that may affect the time for a decision, kick the proverbial can down the road to the Petitioners’ and the public’s detriment.
6. Petitioners are left in limbo – their requests neither granted nor denied – with the only certainty being the receipt of another monthly Form Delay Letter from Respondents gifting themselves more time and abdicating their statutory duty to make their records available to the public. All the while, the Petitioners and the public are left in the dark about the workings and failings of their government.
7. Recognizing that Respondents refuse to even determine whether Petitioners’ requests should be granted or denied – let alone provide Petitioners with the requested documents – in May 2016 Petitioners construed Respondents’ excessive delays in responding as constructive denials of their requests and filed administrative appeals of the constructive denials with the DOE (Ms. Edelman and Mr. Short on May 18, 2016 and Mr. Gonen on May 24, 2016). At the time of filing their administrative appeals, Petitioners were collectively waiting for Respondents to grant or deny twelve separate FOIL requests – five (5) for Ms. Edelman, four (4) for Mr. Short, and three (3) for Mr. Gonen. Petitioners had received between three (3) and fourteen (14) Form Delay Letters for each request, and had been waiting for between four (4) and twenty (20) months for responses to each request. As of the date of this Petition, Petitioners have been awaiting a “yes” or a “no” on each of the remaining ten outstanding requests for between more than six (6) months and more than twenty (20) months.
8. In decisions dated June 6, 2015 and June 8, 2015, the First Deputy General Counsel of the DOE Judy Nathan, on behalf of Respondents, rejected Petitioners’ administrative appeals, finding that the requests had not been constructively denied and were not ripe for review. Ms. Nathan reasoned that because Respondents continued to send monthly extension letters with new “approximate date[s]” for the agency to respond, and because the Chancellor’s Regulation D-110(VIII)(A) considers a request constructively denied only when the request is neither granted nor denied “within the time limits set forth . . . in the acknowledgment letter or
any extension letter(s) . . . ,” no constructive denial could occur so long as DOE continued to send Form Delay Letters.
9. The Chancellor’s Regulation which provides for unlimited “extension letter(s)” is an invalid usurpation of legislative authority, as it is inconsistent with the language and the legislative purpose of Public Officers Law § 89(3)(a) and the Committee on Open Government’s implementing regulations (the “Implementing Regulations”), neither of which authorizes multiple unilateral extensions of time to grant or deny the request.
10. If this provision of the Chancellor’s Regulation is allowed to stand – or if Respondents’ actions here in taking repeated unilateral pro forma extensions of their time to grant or deny a request is condoned as “reasonable under the circumstances of the request(s)” – the entire FOIL would be rendered meaningless and agencies could avoid (or in DOE’s case, continue to avoid) providing public records merely by sending the same pat letter month after month – and avoid any administrative or judicial review by claiming their extensions are not constructive denials.
11. Having now exhausted their administrative remedies, Petitioners now seek (1) a declaration pursuant to CPLR § 3001 that Chancellor’s Regulation D-110(VIII)(A) is invalid and contrary to FOIL and the Implementing Regulations, and that the DOE’s practice of granting itself serial unilateral extensions of time to respond to FOIL requests is unlawful and tantamount to a constructive denial; and (2) an Order pursuant to Article 78 of the New York Civil Practice Law and Rules, directing the DOE to produce all disclosable records responsive to Petitioners’ ten outstanding requests1 within twenty (20) days of the Court’s order; and (3) award Petitioners their the costs and fees, together with such other and further relief the Court deems just and proper.
PARTIES
12. Petitioner NYP Holdings, Inc. is a corporation organized and existing under the laws of Delaware with its principal place of business at 1211 Avenue of the Americas, New York, New York, 10036-8790. NYP Holdings, Inc. is the publisher of the New York Post (the “Post”), the oldest, continuously published daily newspaper in the United States, having first been published by Alexander Hamilton in 1801. Today, the Post is sold in many states in the United States, both at newsstands, by subscription, and digitally via the Internet.
13. Petitioner Susan Edelman is an investigative reporter for the New York Post Sunday edition who covers a variety of news beats including education news. She has reported extensively on education spending, teacher pay, misconduct in education, and a host of other topics of significant public interest.
14. Petitioner Aaron Short is an investigative reporter for the New York Post Sunday edition covering government. Between January 2014 and June 2015 he covered education and state government for the Post’s daily edition. In both roles, he has reported on various issues of significant public interest relating to education and the New York City Department of Education.
15. Petitioner Yoav Gonen is an investigative reporter and the City Hall Bureau Chief for the New York Post. In this role, he has reported extensively on various issues of significant public interest relating to public education and the New York City Department of Education.
footnote1: Since Ms. Edelman and Mr. Short filed their administrative appeal, perhaps fearing this action, Respondents have granted in part two of the nine FOIL requests at issue on their appeal – F#11,479 on May 27, 2016 and F#10,586 on June 17, 2016. The Requests, however, are relevant to Petitioners’ request for declaratory relief under CPLR § 3001.
16. Respondent the New York City Department of Education consists of the Board of Education of the City School District of the City of New York, also known as the Panel for Educational Policy, established by Educ. Law § 2590(b), the Chancellor, and other school employees.2 DOE is an “agency” within the meaning of Public Off. Law § 86(3). Its principal office is located at 52 Chambers Street, Room 308, New York, NY 10007.
17. Respondent Carmen Fariña is the Chancellor of the DOE and is charged with administration of New York City’s public schools, including the provision of academic standards, student placement, school funding, and teacher recruitment. Her principal office is located at 52 Chambers Street, New York, NY 10007.
JURISDICTION & VENUE
18. This Court has jurisdiction pursuant to C.P.L.R. § 7801 et seq. to review the actions by bodies or officers who have failed to perform a duty enjoined on them by law.
19. The court also has jurisdiction pursuant to C.P.L.R. § 3001 to render declaratory relief.
20. Venue properly lies in New York County pursuant to CPLR § 506(b) and CPLR § 7804(b) because that is where DOE’s principal office is located and because it is within the judicial district wherein DOE made the determinations petitioned against and complained of and where it refused to perform the duties specifically enjoined upon it by law.
STATEMENT OF FACTS
I. THE FIRST REQUEST (F#10,586)
21. On September 23, 2014, Mr. Short requested the following records from the DOE
footnote 2: See DOE, Bylaws of the Panel for Educational Policy of the Department of Education of the City School District of the City of New York, http://schools.nyc.gov/AboutUs/leadership/PEP/bylaws/default.htm (last visited Jun. 28, 2016).
(the “First Request”): a list of public school teachers, sorted by school, who have taken between 11 and 20 days off from school in the 2013-2014 school year, and a list of teachers who have taken 20 or more days off. A true and correct copy of the First Request is attached hereto as Exhibit 1.
22. DOE is required to maintain this record. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to employee absences or accruals, employee’s time records covering leave, absences, hours worked and scheduling, vacation schedules, report of absence and request for leave without pay).
23. On September 30, 2014, Mr. Baranello sent a letter to Mr. Short acknowledging receipt of his request and stating that DOE anticipated providing a response by October 29, 2014. A true and correct copy of the September 30, 2014 letter is attached hereto as Exhibit 2.
24. On October 29, 2014, however, instead of receiving a determination of whether the request was granted or denied, Mr. Short received a Form Delay Letter from Mr. Baranello stating that “a response is currently anticipated by December 1, 2014.” Over the next several months, Mr. Baranello sent a series of identical Form Delay Letters to Mr. Short granting DOE unilateral extensions of its time to grant or deny the request to the following new anticipated dates:
• February 2, 2015,
• March 31, 2015,
• April 28, 2015,
• May 27, 2015,
• June 24, 2015,
• September 18, 2015,
• October 19, 2015,
• November 17, 2015,
• December 17, 2015,
• January 21, 2016,
• February 19, 2016,
• March 18, 2016, and
• April 15, 2016.
True and correct copies of the Form Delay Letters related to the First Request are attached hereto as Exhibit 3.
25. At the time Mr. Short and Ms. Edelman filed their administrative appeal on May 18, 2016, the April 15, 2016 deadline had passed and Mr. Short had received neither a substantive response nor even another Form Delay Letter from Respondent.
26. On June 17, 2016, a month after the appeal was filed, more than two months after the most recent “approximate date” for DOE to grant or deny the request had passed, and twenty
one (21) months after Mr. Short filed his initial request, Petitioners received a response from Respondent, granting in part the First Request. Mr. Short was provided with a single excel spreadsheet with the name of every teacher redacted. The amount of time it took to review and redact this single document – Respondents’ stated reason for the delay other than the volume of other requests – took only as long as it would take to type the word “REDACTED” and paste it into two columns of a spreadsheet. A true and correct copy of the Response to the First Request is attached hereto as Exhibit 4.
27. Because DOE took so long to respond to the First Request, the information sought in the request for the 2013-2014 school year is now stale. As a result, Petitioners did not appeal this partial denial.
II. THE SECOND REQUEST (F#10,764)
28. On November 20, 2014, Mr. Short requested the following records from the DOE (the “Second Request”): a list or spreadsheet of arrests of DOE employees and the type of crime or non-criminal incident for which they were charged from January 1, 2010 to November 20, 2014. A true and correct copy of the Second Request is attached hereto as Exhibit 5.
29. DOE is required to maintain this record. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to investigative records and disciplinary proceedings, personnel-related records of reports of allegations of child abuse against school employees and volunteers in an “educational setting”).
30. On December 1, 2014, Mr. Baranello sent a letter to Mr. Short acknowledging receipt of his request and stating that DOE anticipated providing a response by December 31, 2014. A true and correct copy of the December 1, 2014 letter is attached hereto as Exhibit 6.
31. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Mr. Short a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• February 2, 2015,
• March 31, 2015,
• April 28, 2015,
• May 27, 2015,
• June 24, 2015,
• August 20, 2015,
• September 18, 2015,
• October 19, 2015,
• November 17, 2015,
• December 17, 2015,
• January 21, 2016,
• February 19, 2016,
• March 18, 2016, and
• April 15, 2016.
32. At the time Mr. Short and Ms. Edelman filed their administrative appeal on May 18, 2016, the April 15, 2016 deadline had passed and Mr. Short had received neither a substantive response nor even another Form Delay Letter from Respondent.
33. Then, after Mr. Short and Ms. Edelman filed their administrative appeal and almost three months after the most recent “anticipated date” for DOE to respond had passed, DOE sent a fifteenth (15) Form Delay Letter granting itself yet another unilateral extension until
• July 12, 2016.
True and correct copies of the Form Delay Letters related to the Second Request are attached hereto as Exhibit 7.
34. As of the date of this Petition, July 12, 2016 came and went with no response.
This request has been outstanding for more than twenty (20) months.
III. THE THIRD AND FOURTH REQUESTS (F #11,061, F#11,068)
35. On March 4, 2015, Mr. Gonen requested the following records from the DOE (the “Third Request”): a copy of all e-mails sent and received by DOE Press Secretary Devora Kaye on March 3, 2015. A true and correct copy of the Third Request is attached hereto as Exhibit 8.
36. On March 6, 2015, Mr. Gonen requested the following records from the DOE (the “Fourth Request”): a copy of all e-mails sent and received by Ms. Kaye on March 2, 2015. A true and correct copy of the Fourth Request is attached hereto as Exhibit 9.
37. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records for which a FOIL request has been received).
38. On March 11, 2015, Mr. Baranello sent a letter to Mr. Gonen acknowledging receipt of the Third and Fourth Requests, and stating that DOE anticipated providing a response to both by April 7, 2015. A true and correct copy of the March 11, 2015 letter is attached hereto as Exhibit 10.
39. Instead of receiving a determination of whether the requests were granted or denied, Mr. Baranello sent Mr. Gonen a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the requests to the following new anticipated dates:
• May 5, 2015,
• June 3, 2015,
• July 1, 2015,
• July 30, 2015,
• August 27, 2015,
• September 25, 2015,
• October 26, 2015,
• December 28, 2015,
• January 26, 2015 [sic],
• February 26, 2016,
• March 25, 2016,
• April 22, 2016, and
• May 20, 2016.
40. After Mr. Gonen filed his administrative appeal and DOE denied it, DOE sent three additional Form Delay Letters for a total of sixteen (16) Form Delay Letters granting itself
further unilateral extensions until:
• June 20, 2016,
• July 19, 2016, and
• August 16, 2016.
True and correct copies of the Form Delay Letters related to the Fourth Request are attached hereto as Exhibit 11.
41. As of the date of this Petition, this request has been outstanding for more than seventeen (17) months.
IV. THE FIFTH REQUEST (F#11,115)
42. On March 17, 2015, Mr. Gonen requested the following records from the DOE (the “Fifth Request”): a breakdown of the reason for/method of departure for each of the 291 educators/staffers in the ATR (“Absent Teacher Reserve”) pool that Mayor de Blasio has said repeatedly have been “moved” out of the schools system since April 2014, including the teacher’s name, location of last teaching assignment, and reason for/method of departure, as well as copies of any related stipulations of settlement or expedited 3020-A hearing reports. A true and correct copy of the Fifth Request is attached hereto as Exhibit 12.
43. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records for which a FOIL request has been received, as well as records related to substitute teacher registries and terminations).
44. On March 13, 2015, four days prior to submitting the Fifth Request, Mr. Gonen e-mailed Jason Fink of the DOE’s Press Office asking him to provide the same list he later requested in the first part of the Fifth Request. On March 17, 2015, Mr. Fink contacted Mr. Gonen to tell him, “So apparently you have a FOIL request in that seems to cover this.” In response, Mr. Gonen wrote, “It’s true. That doesn’t preclude you from answering sooner. I’d cancel the foil if so.” A true and correct copy of this e-mail chain is attached hereto as Exhibit 13. On March 20, 2015, Mr. Fink sent Mr. Gonen an e-mail containing a chart of the ATR exits with minimal detail in response to Mr. Gonen’s earlier e-mail to the Press Office. This information was provided completely independent of the FOIL process. A true and correct copy of Mr. Fink’s e-mail is attached hereto as Exhibit 14.
45. On March 24, 2015, Mr. Baranello sent a letter to Mr. Gonen acknowledging receipt of his FOIL request, observing that a portion of the request had already been provided to Mr. Gonen, and stating that DOE anticipated providing a response to the remainder of the request by April 20, 2015. A true and correct copy of the March 24, 2015 letter is attached hereto as Exhibit 15.
46. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Mr. Gonen a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• May 18, 2015,
• June 16, 2015,
• July 15, 2015,
• August 12, 2015,
• September 10, 2015,
• October 8, 2015,
• December 9, 2015,
• January 12, 2016,
• March 10, 2016,3
• April 7, 2016,
• May 5, 2016, and
• June 3, 2016.
47. After Mr. Gonen filed his administrative appeal and DOE denied it, DOE sent three additional Form Delay Letters for a total of fifteen (15) Form Delay Letters granting itself further unilateral extensions until:
• July 1, 2016,
• August 1, 2016, and
• August 29, 2016.
True and correct copies of the Form Delay Letters and Mr. Gonen’s e-mail exchange with Mr. Mantell about delays related to the Fifth Request are attached hereto as Exhibit 16.
48. As of the date of this Petition, this request has been outstanding for just under seventeen (17) months.
V. THE SIXTH REQUEST (F#11,479)
49. On July 6, 2015, Ms. Edelman requested the following records from the DOE (the “Sixth Request”): records on the re-scoring of the Regents exams in New York City schools including all records of requests by New York City superintendents and other personnel to re- score the January 2015 Regents exams. A true and correct copy of the Sixth Request is attached hereto as Exhibit 17.
footnote 3: On February 22, 2016, well over a month after DOE’s most recent anticipated date of response (January 12, 2016) had passed, Mr. Gonen wrote to Will Mantell of the DOE press office who sends all FOIL responses on behalf of Mr. Baranello, and asked “hey Will, have you sent anything since this notice? I don’t see anything if you did,” to which Mr. Mantell responded, “Doesn’t look like it. I’ll look into it tmo.” This email exchange is included as part of Exhibit 16.
50. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to Regents exam test results).
51. On July 13, 2015, Mr. Baranello sent a letter to Ms. Edelman acknowledging receipt of her request and stating that DOE anticipated providing a response by August 10, 2015. A true and correct copy of the July 13, 2015 letter is attached hereto as Exhibit 18.
52. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Ms. Edelman a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• September 8, 2015,
• November 4, 2015,
• December 7, 2015,
• January 8, 2016,
• February 8, 2016,
• March 25, 2016, and
• May 20, 2016.
True and Correct copies of the Form Delay Letters related to the Sixth Request are attached hereto as Exhibit 19.
53. On May 27, 2016, a week after the most recent “anticipated date” for DOE to respond had passed, ten days after Mr. Short and Ms. Edelman filed their appeal, and more than ten (10) months after she filed her initial request, Ms. Edelman received a response from Respondent, granting in part her request. Ms. Edelman was provided with a single excel spreadsheet. The amount of time it took to review and redact this automatically generated
information – DOE’s stated reason for the delay other than the volume of other requests – took only as long as it would take to type the word “REDACTED” and paste it into three columns of a spreadsheet. A true and correct copy of the Response to the Sixth Request is attached hereto as Exhibit 20.
54. As with the First Request, because DOE took so long to respond to the Sixth Request, the information sought in the request is now stale. As a result, Petitioners did not appeal this partial denial.
VI. THE SEVENTH REQUEST (F#11,571)
55. On August 12, 2015, Ms. Edelman requested the following records from the DOE (the “Seventh Request”): copies of reports completed or finalized since January 1, 2014 by the Office of Special Investigation (OSI). A true and correct copy of the Seventh Request is attached hereto as Exhibit 21.
56. Among its various responsibilities, the OSI investigates allegations of improper and unlawful behavior, including corporal punishment, verbal abuse against students, and various other forms of misconduct in the DOE. The DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to child abuse or maltreatment reports and related records and complaints about use of corporal punishment against students).
57. On August 19, 2015, Mr. Baranello sent a letter to Ms. Edelman acknowledging receipt of her request and stating that DOE anticipated providing a response by September 17, 2015. A true and correct copy of the August 19, 2015 letter is attached hereto as Exhibit 22.
58. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Ms. Edelman a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• October 16, 2015,
• November 16, 2015,
• December 16, 2015,
• January 20, 2016,
• February 18, 2016,
• April 14, 2016,
• May 12, 2016, and
• June 10, 2016.
59. After Mr. Short and Ms. Edelman filed their administrative appeal and DOE denied it, DOE sent four additional Form Delay Letters for a total of twelve (12) Form Delay Letters granting itself further unilateral extensions until:
• July 11, 2016,
• July 25, 2016,
• August 8, 2016, and
• August 22, 2016.
True and correct copies of the Form Delay Letters related to the Sixth Request are attached hereto as Exhibit 23.
60. As of the date of this Petition, this request has been outstanding for just under twelve (12) months.
VII. THE EIGHTH REQUEST (F#11,677)
61. On October 2, 2015, Mr. Short requested the following records from the DOE (the “Eighth Request”): payroll records for Renewal School Superintendent Amy Horowitz and all staff who work with Ms. Horowitz on the Renewal School initiative for 2015, or for the 2014-2015 school year. A true and correct copy of the Eighth Request is attached hereto as Exhibit 24.
62. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of payroll records). Further, one of the few exceptions to the FOIL’s rule that agencies do not need to create records to respond to a FOIL request is that every agency is required to create “a record setting forth the name, public office address, title and salary of every officer or employee of the agency.” Pub. Off. Law. § 87(3)(b).
63. On October 9, 2015, Mr. Baranello sent a letter to Mr. Short acknowledging receipt of his request and stating that DOE anticipated providing a response by November 9, 2015. A true and correct copy of the October 9, 2014 letter is attached hereto as Exhibit 25.
64. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Mr. Short a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• December 10, 2015,
• February 11, 2016,
• April 8, 2016, and
• May 6, 2016.
65. At the time Mr. Short and Ms. Edelman filed their administrative appeal on May 18, 2016, the May 6, 2016 deadline had passed and Mr. Short had received neither a substantive response nor even another Form Delay Letter from Respondent.
66. Nevertheless, after Mr. Short and Ms. Edelman filed their administrative appeal and a month after the most recent “anticipated date” for DOE to respond had passed, DOE sent three additional Form Delay Letters for a total of seven (7) Form Delay Letters granting itself further unilateral extensions until:
• July 5, 2016,
• August 2, 2016, and
• August 30, 2016.
True and correct copies of the Form Delay Letters related to the Eighth Request are attached hereto as Exhibit 26.
67. As of the date of this Petition, this request has been outstanding for more than ten (10) months.
VIII. THE NINTH REQUEST (F#11,856)
68. On December 2, 2015, Ms. Edelman requested the following records from the DOE (the “Ninth Request”): records of disciplinary action involving school bus drivers and “matrons” or other such aides since December 1, 2014. A true and correct copy of the Ninth Request is attached hereto as Exhibit 27.
69. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to disciplinary proceedings).
70. On December 8, 2015, Mr. Baranello sent a letter to Ms. Edelman acknowledging receipt of her request and stating that DOE anticipated providing a response by January 11, 2016. A true and correct copy of the December 8, 2015 letter is attached hereto as Exhibit 28.
71. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Ms. Edelman a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• February 9, 2016,
• March 9, 2016,
• April 6, 2016,
• May 4, 2016, and
• June 2, 2016.
72. Then, after Mr. Short and Ms. Edelman filed their administrative appeal, DOE sent five additional Form Delay Letters for a total of ten (10) Form Delay Letters granting itself further unilateral extensions until:
• June 30, 2016,
• July 15, 2016,
• July 22, 2016,
• July 29, 2016, and
• August 12, 2016.
True and correct copies of the Form Delay Letters related to the Ninth Request are attached hereto as Exhibit 29.
73. As of the date of this Petition, this request has been outstanding for more than eight (8) months.
IX. THE TENTH REQUEST (F#11,858)
74. Also on December 2, 2015, Ms. Edelman requested the following records from the DOE (the “Tenth Request”): records detailing weapons found or confiscated in city schools in the 2013-2014 school year, the 2014-2015 school year, and the current school year. A true and correct copy of the Tenth Request is attached hereto as Exhibit 30.
75. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to disciplinary proceedings).
76. Ms. Edelman had previously requested and been provided with this exact information by DOE for prior year’s reporting. Recognizing that this data is readily available to Respondent, in an effort to expedite processing of her request, Ms. Edelman attached to her request the similar records DOE released to her in March 2012. A true and correct copy of the DOE’s Response to Ms. Edelman’s previous FOIL request and the two spreadsheets provided (one for each school year) are attached hereto as Exhibit 31.
77. On December 8, 2015, Mr. Baranello sent a letter to Ms. Edelman acknowledging receipt of her request and stating that DOE anticipated providing a response by January 11, 2016. A true and correct copy of the December 8, 2015 letter is attached hereto as Exhibit 32.
78. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Ms. Edelman a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• February 9, 2016,
• March 9, 2016,
• April 6, 2016,
• May 4, 2016, and
• June 2, 2016.
79. Then, after Mr. Short and Ms. Edelman filed their administrative appeal, DOE sent five additional Form Delay Letters for a total of ten (10) Form Delay Letters granting itself further unilateral extensions until:
• June 30, 2016,
• July 15, 2016,
• July 22, 2016,
• July 29, 2016, and
• August 12, 2016.
True and correct copies of the Form Delay Letters related to the Tenth Request are attached hereto as Exhibit 33.
80. As of the date of this Petition, this request has been outstanding for more than eight (8) months.
X. THE ELEVENTH REQUEST (F#11,894)
81. On December 16, 2015, Mr. Short requested the following records from the DOE (the “Eleventh Request”): attendance records for all DOE principals in the 2013-2014 school year, 2014-2015 school year, and in 2015 between September 9, 2015 and December 15, 2015. A true and correct copy of the Eleventh Request is attached hereto as Exhibit 34.
82. The DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to employee absences or accruals, employee’s time records covering leave, absences, hours worked and scheduling, vacation schedules, report of absence and request for leave without pay).
83. On December 22, 2015, Mr. Baranello sent a letter to Mr. Short acknowledging receipt of his request and stating that DOE anticipated providing a response by January 26, 2016. A true and correct copy of the December 22, 2015 letter is attached hereto as Exhibit 35.
84. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Mr. Short a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• March 23, 2016, and
• April 20, 2016.
85. At the time Mr. Short and Ms. Edelman filed their administrative appeal on May 18, 2016, the April 20, 2016 deadline had passed and Mr. Short had received neither a substantive response nor even another Form Delay Letter from Respondent.
86. Nevertheless, after Mr. Short and Ms. Edelman filed their administrative appeal and a month after the most recent “anticipated date” for DOE to respond had passed, DOE sent three additional Form Delay Letters for a total of five (5) Form Delay Letters, granting itself further unilateral extensions until
• June 16, 2016,
• July 15, 2016, and
• August 12, 2016.
True and correct copies of the Form Delay Letters related to the Eleventh Request are attached hereto as Exhibit 36.
87. As of the date of this Petition, this request has been outstanding for more than seven (7) months.
XI. THE TWELFTH REQUEST (F#12,015)
88. On January 25, 2016, Ms. Edelman requested the following records from the DOE (the “Twelfth Request”): records of all procurement card (P-card) expenses by DOE personnel since August 21, 2014. A true and correct copy of the Twelfth Request is attached hereto as Exhibit 37.
89. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating procurements of goods and services and credit card expenditures).
90. As with the Tenth Request, Ms. Edelman had previously requested and been provided with this exact information for the period from September 1, 2013 to August 21, 2014. Again, in an effort to expedite the processing of her request, Ms. Edelman attached to her request DOE’s response to her prior request. A true and correct copy of the DOE’s Response to Ms. Edelman’s previous FOIL request along with a pdf of the first 44 lines of the spreadsheet produced by DOE is attached hereto as Exhibit 38.
91. On January 28, 2016, Mr. Baranello sent a letter to Ms. Edelman acknowledging receipt of her request and stating that DOE anticipated providing a response by February 26, 2016. A true and correct copy of the January 28, 2016 letter is attached hereto as Exhibit 39.
92. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Ms. Edelman a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• March 25, 2015 [sic],
• April 22, 2015 [sic], and
• May 20, 2015 [sic].
93. Then, after Mr. Short and Ms. Edelman filed their administrative appeal, DOE sent six additional Form Delay Letters for a total of nine (9) Form Delay Letters granting itself further unilateral extensions until:
• June 20, 2015 [sic],
• July 19, 2016,
• July 26, 2016,
• August 2, 2016,
• August 8, 2016, and
• August 15, 2016.
True and correct copies of the Form Delay Letters are attached hereto as Exhibit 40.
94. As of the date of this Petition, this request has been outstanding for more than six (6) months.
XII. PETITIONERS’ EFFORTS TO GET DOE TO GRANT OR DENY THEIR REQUESTS
95. Over the course of this extended period of delay, Petitioners did not sit idly by.
96. On November 17, 2015, frustrated with DOE’s dilatory tactics, Ms. Edelman e-mailed Respondent, contesting its practice of sending multiple “form letters delaying compliance with no specific reason.” Specifically, she wrote, “You say the documents will be forthcoming the following month, but I have no confidence that you will send anything other than another form letter with another delay.” Ms. Edelman received no response to her e-mail. A true and correct copy of Ms. Edelman’s November 17, 2015 email is attached hereto as Exhibit 41.
97. Further, on both March 31, 2016 and April 14, 2016, counsel for the Post sent letters to DOE requesting that it respond to the Post’s requests and to inform it that the DOE pattern and practice of delays was unreasonable and contrary to law. In each of these letters, the Post stated that if the requested records were not provided in a timely fashion, the Post would have no choice but to consider DOE’s excessive and repeated delays a constructive denial. Neither Mr. Baranello nor anyone at DOE responded to the Post’s letters. A true and correct copy of the Post’s March 31, 2016 letter is attached hereto as Exhibit 42. A true and correct copy of the Post’s April 14, 2016 letter is attached hereto as Exhibit 43.
XIII. PETITIONERS’ ADMINISTRATIVE APPEALS OF THE CONSTRUCTIVE DENIALS OF THE TWELVE REQUESTS
98. As of May 2016, Petitioners had yet to receive a substantive response to any of the twelve FOIL requests that form the substance of this Petition.
99. Accordingly, on May 18, 2016, Ms. Edelman and Mr. Short timely submitted an administrative appeal of the constructive denials of the First, Second, Sixth, Seventh, Eighth Ninth, Tenth, Eleventh and Twelfth Requests. A true and correct copy of Mr. Short’s and Ms. Edelman’s May 18, 2016 Appeal is attached hereto as Exhibit 44.
100. By letter dated June 6, 2016 from DOE First Deputy General Counsel Judy Nathan, the DOE denied Mr. Short’s and Ms. Edelman’s administrative appeal out of hand. The DOE held that the Requests had not been constructively denied because “according to Chancellor’s Regulation D-110(VIII)(A), a request may be deemed constructively denied only where a requestor ‘is neither granted nor denied access to records within the time limits set forth above [in section V(VI)] or in the acknowledgment letter or any extension letter(s)…’ (emphasis added).” Further, DOE observed that Mr. Baranello had “properly determined that additional time was required” to respond because of “the total number of requests as well as the extensive and voluminous nature of some of the items requested” and that “review and redaction of the requested records . . . are time-consuming.”
101. Ms. Nathan also held that the Sixth Request was moot because on May 27, 2016, a week after the most recent “anticipated date” for DOE to respond had passed, and more than ten (10) months after she filed her initial request, Ms. Edelman received a response from Respondent, granting in part her request. Ms. Edelman was provided with a single excel spreadsheet. The amount of time it took to review and redact this automatically generated information – DOE’s stated reason for the delay other than the volume of other requests – took only as long as it would take to type the word “REDACTED” and paste it into three columns of a spreadsheet. See supra, Exhibit 20.
102. Although Ms. Nathan denied Mr. Short’s and Ms. Edelman’s appeal, she directed DOE to respond to their requests “as expeditiously as possible.” A true and correct copy of DOE’s June 6, 2016 Denial Letter is attached hereto as Exhibit 45.
103. Similarly, on May 24, 2016, Mr. Gonen timely submitted two administrative appeals of the constructive denials of the Third, Fourth, and Fifth Requests. A true and correct copy of Mr. Gonen’s May 24, 2016 Appeal from the constructive denial of the Third and Fourth Requests is attached hereto as Exhibit 46. A true and correct copy of Mr. Gonen’s May 24, 2016 Appeal from the constructive denial of the Fifth Request is attached hereto as Exhibit 47.
104. By letter dated June 8, 2016 from DOE First Deputy General Counsel Judy Nathan, the DOE denied Mr. Gonen’s administrative appeals out of hand. As with Ms. Edelman’s and Mr. Short’s appeal, the DOE held that Mr. Gonen’s requests had not been constructively denied because “according to Chancellor’s Regulation D-110(VIII)(A), a request may be deemed constructively denied only where a requestor ‘is neither granted nor denied access to records within the time limits set forth above [in section V(VI)] or in the acknowledgment letter or any extension letter(s)…’ (emphasis added).” Further, DOE observed that Mr. Baranello had “properly determined that additional time was required” to respond because of “the extensiveness of your various request items,” and that “review and redaction of the requested records . . . are time-consuming.” A true and correct copy of DOE’s June 8, 2016 Denial Letter is attached hereto as Exhibit 48.
105. On July 19, 2016, in response to a request from Petitioners, Kristin O’Neill, Assistant Director of the Committee on Open Government, issued an advisory opinion regarding Petitioners’ requests and whether the Chancellor’s Regulations are consistent with FOIL and the Implementing Regulations. The Committee concluded that “there is no provision in the statute for repeated extensions,” and an “agency is not permitted to establish the right to repeated extensions via regulation, where such right does not exist in statute or in the Committee’s own regulations.” Further, the Committee concluded that it was reasonable for Petitioners to conclude that the receipt of repeated extension notices and failure of DOE to determine Petitioners’ rights of access constituted constructive denials. A true and correct copy of the Advisory Opinion is attached hereto as Exhibit 49.
XIV. OTHER EVIDENCE OF A PATTERN AND PRACTICE OF DELAY
106. On January 13, 2016, Ms. O’Neill issued an advisory opinion at the request of Nairobi Vives, Esq. whose FOIL request to Empire State Development had been similarly delayed by numerous unilateral extensions. There, the Committee also observed that “there is no provision in the statute for repeated extensions,” and opined that after three unilateral extensions by the agency, it was reasonable for the requester to construe the delay in responding as a constructive denial. A true and correct copy of the Advisory Opinion is attached hereto as Exhibit 50.
107. In April 2013, the then-Public Advocate For the City of New York, Mayor Bill de Blasio, issued a report titled “Breaking Through Bureaucracy: Evaluating Government Responsiveness to Information Requests in New York City.” In the report, the Mayor gave the DOE a “D” rating for its handling of FOIL requests in general and an “F” for its response time. Further, the Mayor stated that the failure of an agency to send a “yes” or “no” response six months after the initial request is “unacceptable and represent de-facto denials . . . (and) undermines the spirit of the Freedom of Information Law.” A true and correct copy of the Report is attached hereto as Exhibit 51.
108. On July 28, 2015, New York Post reporter, Carl Campanile submitted a request for copies of reports completed by the DOE OSI that substantiated claims of test or grade tampering/inflation or other cheating in public schools for the 2013-2014 and 2014-2015 school year. This request is nearly identical to – albeit narrower than – the Seventh Request at issue on this petition (OSI reports completed or finalized since January 1, 2014). See supra ¶ 49. On August 4, 2015, Mr. Baranello sent a letter to Mr. Campanile acknowledging receipt of his request and stating that DOE anticipated providing a response by September 1, 2015. Since then, Mr. Baranello sent eleven (11) Form Delay Letters granting DOE unilateral extensions until September 30, 2015, October 29, 2015, January 4, 2016, February 2, 2016, March 2, 2016, March 30, 2016, April 27, 2016, May 25, 2016, June 23, 2016, July 22, 2016, and finally August 19, 2016. This request has now been outstanding for more than a year without a response.
While this request is not at issue in the instant Article 78 Petition, it demonstrates further that DOE is engaged in a pattern and practice of unreasonably delaying responding to FOIL requests. A true and correct copy of the initial request, acknowledgment letter and subsequent Form Delay Letters are attached hereto as Exhibit 52.
FIRST CAUSE OF ACTION
(DECLARATORY JUDGMENT – DOE LACKS AUTHORITY TO ISSUE REGULATIONS IN CONTRAVENTION OF N.Y. PUB. OFFICERS LAW § 84 ET SEQ.)
109. Petitioners repeat and reallege Paragraphs 1 through 108 above, and incorporate such allegations as if fully set forth herein.
110. The public’s right of access to government information is governed by the Freedom of Information Law (“FOIL”), N.Y. Pub. Officers Law § 84 et seq.
111. FOIL requires that “Each agency shall promulgate rules and regulations, in conformity with this article and applicable rules and regulations promulgated . . . pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article”. N.Y. Pub. Off. Law § 87(1)(b).
112. With respect to the timing of determining whether to grant or deny a request, FOIL requires that within five business days of the receipt of a request for records, an agency must “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.” N.Y. Pub. Off. Law § 89(3)(a) (emphasis added).
113. Further, in the event an agency fails to determine whether to grant or deny a request within a reasonable time period, both FOIL and the Implementing Regulations make clear that it constitutes an appealable denial – i.e., a “constructive denial.” N.Y. Pub. Off. Law § 89(4)(a) (“Failure by an agency to conform to the provisions of subdivision three of this section shall constitute a denial.”); 21 N.Y.C.R.R. § 1401.5(e) (“failure to comply with the time limitations . . . shall constitute a denial of a request that may be appealed”).
114. In addition to the plain language of the FOIL, the Implementing Regulations require that if an agency is unable to grant or deny a request within five business days, that it must include an approximate date in the acknowledgment letter if it anticipates disclosing records in twenty days or fewer, or a date certain if beyond twenty days. 21 N.Y.C.R.R. § 1401.5(c)(3). The Implementing Regulations also provide that “failure to comply with the time limitations . . . shall constitute a denial of a request that may be appealed.” 21 N.Y.C.R.R. § 1401.5(e).
115. Neither FOIL nor its Implementing Regulations authorizes agencies to take repeated extensions or afford an agency the option of repeatedly providing “a new reasonable approximate date for the agency’s response” as DOE contends. See Exhibits 45, 48.
116. Nevertheless, Chancellors Regulation D-110(VIII)(A) purports to authorize DOE to issue “extension letter(s)” thereby contravening the express language of the FOIL and the Committee on Open Government’s Implementing Regulations. Specifically, Chancellor’s Regulation D-110(VIII)(A) provides that “A requester who is neither granted nor denied access to records within the time limits set forth above or in the acknowledgment letter or any extension letter(s) may consider the request constructively denied and may appeal such denial in accordance with the procedures set forth below.” (emphasis added)
117. Permitting DOE to send unlimited extension letters without the specter of a constructive denial, as opposed to providing a single reasonable “approximate date” for when it will grant or deny a FOIL request, permits the agency to delay responses in perpetuity, frustrates the public’s right to know, and upends the system of administrative appeals and judicial review as set forth in the FOIL.
118. Chancellors Regulation D-110(VIII)(A) is inconsistent with the language of N.Y. Pub. Officers Law § 89(3)(a) and its underlying purpose as it purports to permit DOE to unreasonably delay and effectively prevent access to government information without judicial review merely by sending monthly letters unilaterally extending its time to grant or deny FOIL requests.
119. DOE acknowledges that it applies Chancellors Regulation D-110(VIII)(A) so as to permit it to send repeated extension letters for months on end provided each letter includes “a new reasonable approximate date” for the agency to respond.
120. DOE also acknowledges that Chancellor’s Regulation D-110(VIII)(A) deems a request constructively denied only when the request is neither granted nor denied “within the time limits set forth . . . in the acknowledgment letter or any extension letter(s) . . .”
121. Chancellor’s Regulation D-110(VIII)(A) is plainly an invalid usurpation of legislative authority and avoidance of judicial review.
122. Chancellor’s Regulation D-110(VIII)(A) has caused, and continues to cause, immediate and irreparable harm to the rights guaranteed to Petitioners and to the public at large under FOIL, Article 1, Section 8 of the New York State Constitution, and the First Amendment to the United States Constitution.
123. The validity or invalidity of Chancellor’s Regulation D-110(VIII)(A) presents a ‘substantial or novel (issue), likely to recur and capable of evading review.’” Hearst Corp. v. City of Albany, 88 A.D.3d 1130, 1131 (3d Dep’t 2011) (alteration in original) (quoting City of New York v. Maul, 14 N.Y.3d 499, 507 (2010)). It is likely that the issue presented here will recur in the future, as the DOE maintains that Chancellor’s Regulation D-110(VIII)(A) entitles it to issue serial extension letters, ad infinitum, in response to FOIL requests.
124. Petitioners have no means to challenge Respondents extended, unilateral, and unreasonable delays. Petitioners have no adequate remedy at law.
125. Accordingly, Petitioners are entitled to a judgment declaring that Chancellors Regulation D-110 is unlawful and/or is inconsistent with N.Y. Pub. Officers Law § 84 et seq. and is, accordingly, invalid.
SECOND CAUSE OF ACTION
(DECLARATORY JUDGMENT – DOE’S PRACTICE OF SENDING REPEATED FORM DELAY LETTERS IS INHERENTLY UNREASONABLE AND CAUSE FOR A CONSTRUCTIVE DENIAL UNDER N.Y. PUB. OFFICERS LAW § 84 ET SEQ.)
126. Petitioners repeat and reallege Paragraphs 1 through 125 above, and incorporate such allegations as if fully set forth herein.
127. The public’s right of access to government information is governed by the Freedom of Information Law (“FOIL”), N.Y. Pub. Officers Law § 84 et seq.
128. With respect to the timing of determining whether to grant or deny a request, FOIL requires that within five business days of the receipt of a request for records, an agency must “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.” N.Y. Pub. Off. Law § 89(3)(a) (emphasis added).
129. Further, in the event an agency fails to determine whether to grant or deny a request within a reasonable time period, both FOIL and the Implementing Regulations make clear that it constitutes an appealable denial – i.e., a “constructive denial.” N.Y. Pub. Off. Law § 89(4)(a) (“Failure by an agency to conform to the provisions of subdivision three of this section shall constitute a denial.”); 21 N.Y.C.R.R. § 1401.5(e) (“failure to comply with the time limitations . . . shall constitute a denial of a request that may be appealed”).
130. Neither FOIL nor its Implementing Regulations authorizes agencies to take repeated extensions or afford an agency the option of repeatedly providing “a new reasonable approximate date for the agency’s response” as DOE contends. See Exhibits 45, 48.
131. DOE has taken the position that sending as many as sixteen separate Form Delay Letters and failing to determine whether to grant or deny a request for as many as twenty-one (21) months is reasonable under the circumstances of a request that calls for the production of a single document.
132. DOE has also taken the position that it may send as many Form Delay Letters as it wants without triggering a constructive denial so long as it sends an extension letter within the time limit set forth by its prior extension letter.
133. DOE’s interpretation of Chancellor’s Regulation D-110(VIII)(A) and the FOIL in general has caused, and continues to cause, immediate and irreparable harm to the rights guaranteed to Petitioners and to the public at large under FOIL, Article 1, Section 8 of the New York State Constitution, and the First Amendment to the United States Constitution.
134. Whether it is reasonable for DOE to take numerous unilateral extensions of its time to determine whether to grant or deny a request presents a ‘substantial or novel (issue), likely to recur and capable of evading review.’” Hearst Corp. v. City of Albany, 88 A.D.3d 1130, 1131 (3d Dep’t 2011) (alteration in original) (quoting City of New York v. Maul, 14 N.Y.3d 499, 507 (2010)). It is likely that the issue presented here will recur in the future, as the DOE maintains that its actions of sending unilateral extension letters for up to twenty one (21) months if not longer for requests that call for the production of a single document is inherently reasonable.
135. Petitioners have no means to challenge Respondents extended, unilateral, and unreasonable delays. Petitioners have no adequate remedy at law.
136. Accordingly, Petitioners are entitled to a judgment declaring that Respondents’ interpretation and application of Chancellors Regulation D-110(VIII)(A) authorizing it to send repeated unilateral extension letters is unlawful and/or is inconsistent with N.Y. Pub. Officers Law § 84 et seq.
THIRD CAUSE OF ACTION
(ARTICLE 78 PETITION – DIRECTING DOE TO PRODUCE RECORDS RESPONSIVE TO OUTSTANDING REQUESTS)
137. Petitioners repeat and reallege Paragraphs 1 through 136 above, and incorporate such allegations as if fully set forth herein.
138. Article 78 of New York’s Civil Practice Law & Rules is the appropriate method for review of agency determinations concerning FOIL requests.
139. The Requests reasonably described the requested records.
140. The information requested is of significant interest to the general public.
141. DOE has engaged in a pattern and practice of failing to comply with its obligations under New York Public Officers Law Section 84 et seq., and Respondents’ Chancellor’s Regulation D-110 by routinely ignoring statutory deadlines, constructively denying requests and ultimately failing to disclose to Petitioners the requested documents to which they are entitled.
142. The DOE’s failure to perform its duties violates the letter and spirit of FOIL, which provides for open disclosure to the public.
143. So long as the DOE maintains its pattern and practice of non-compliance with FOIL, Petitioners are profoundly hindered in their ability to report on the government – the “public’s business” – and hold the DOE accountable for its practices. The DOE has in its trust the City’s children and how it executes that trust is of supreme public concern. See Pub. Off. Law § 84.
144. DOE’s actions have caused, and continue to cause, immediate and irreparable harm to the rights guaranteed to Petitioners and to the public at large under FOIL, Article 1, Section 8 of the New York State Constitution, and the First Amendment to the United States Constitution.
145. Petitioners have exhausted their administrative remedies and have not obtained the requested records.
146. At least with respect to four of the twelve FOIL requests at issue (the First, Second, Eighth, and Eleventh Requests), Respondents failed to grant or deny access to records even within the time limits set forth in their extension letters. Accordingly, even crediting Respondents’ own interpretation of the Chancellor’s Regulation, these four requests at a minimum have been constructively denied and are ripe for decision.
147. To the extent DOE claims as it did in its June 6, 2016 and June 8, 2016 denials of Petitioners’ administrative appeals that Petitioners have failed to exhaust their administrative remedies because DOE has not yet granted or denied their Requests, the exhaustion of administrative remedies under DOE’s conception thereof would be futile since DOE repeatedly and unreasonably delays making any decision granting or denying their requests.
148. As a result of the foregoing, DOE has violated FOIL.
149. Petitioners have no adequate remedy other than this proceeding, and no previous application for the relief requested herein has been made to the court
PRIOR APPLICATION
150. No application has been made for the relief requested herein.
PRAYER FOR RELIEF
WHEREFORE, Petitioners respectfully request that this Court grant judgment:
(1) Declaring that Chancellor’s Regulation Chancellors Regulation D-110(VIII)(A) is unlawful and/or is inconsistent with N.Y. Pub. Officers Law § 84 et seq. and is, accordingly, invalid;
(2) Declaring that the DOE’s practice of sending repeated Form Delay Letters is inherently unreasonable and that determinations in its administrative appeal decisions that it may continue to deny access to public records because it has re- issued serial unilateral extensions violates its obligations under FOIL, N.Y. Pub. Officers Law § 84 et seq.;
(3) Granting Petitioners’ Article 78 Petition, finding that DOE has constructively denied Petitioners’ requests, that Petitioners have exhausted their administrative remedies, and directing DOE to produce all disclosable records responsive to Petitioners’ outstanding requests within twenty (20) days of the Court’s order;
(4) Awarding Petitioners their costs and attorneys’ fees pursuant to Public Officers Law § 89(4)(c); and
(5) Awarding Petitioners such other and further relief as the Court deems just and proper.
Dated: New York, New York August 9, 2016
Respectfully submitted,
Laura R. Handman
Jeremy A. Chase
DAVIS WRIGHT TREMAINE LLP
Tel.: (212) 489-8230
Fax: (212) 489-8340
laurahandman@dwt.com jeremychase@dwt.com
Attorneys for Petitioners-Plaintiffs
NYP Holdings, Inc., Susan Edelman, Aaron Short, and Yoav Gonen
Summons-Complaint
MOL
AFFIDAVIT of Attorney Jeremy A. Chase
RJI
Congratulations to the New York POST (NYPOST) newspaper, and reporters Susan Edelman, Aaron Short, and Yoav Gonen, for filing a petition against the NYC DOE for FOI Law violations!
As an Editor, writer, and a person who files countless FOI requests of the Department I know how the NYC DOE illegally denies access to documents, videos, letters and other information they simply do not want the public to see. The disdain of the NYC DOE for the law is shocking.
Betsy Combier
Editor, Parentadvocates.org
President, ADVOCATZ/Theater Kids, Inc.
betsy.combier@gmail.com
Here is the Petition:
PLEASE TAKE NOTICE that, upon the annexed Verified Petition and Complaint, the exhibits attached thereto, the Affidavit of Jeremy A. Chase, and the memorandum of law in support of the Petition, Petitioners NYP Holdings, Inc., Susan Edelman, Aaron Short, and Yoav Gonen will move this Court at the New York State Supreme Court, New York County Courthouse, located at 60 Centre Street, New York, New York 10007, in the Motions Submission Part, Room 130, at 9:30 a.m. on September 16, 2016, or as soon thereafter as counsel may be heard for an Order and Judgment pursuant to Article 78 of the Civil Practice Law and Rules and Section 3001 of the Civil Practice Law and Rules for the relief demanded in the annexed Verified Petition and Complaint.
PLEASE TAKE FURTHER NOTICE that, pursuant to N.Y.C.P.L.R. § 7804,
Respondents’ answer, if any, must be served upon the undersigned by September 12, 2016 and
Petitioners’ reply, if any will be served on September 15, 2016.
Petitioners-Plaintiffs NYP Holdings, Inc. (“NYP”), Susan Edelman, Aaron Short, and Yoav Gonen (collectively, “Petitioners”), for their verified petition for judgment pursuant to Article 78 of the New York Civil Practice Law and Rules, and their complaint seeking a declaratory judgment pursuant to N.Y.C.P.L.R. § 3001, by and through their undersigned counsel, respectfully allege as follows:
PRELIMINARY STATEMENT
1. This hybrid Article 78 petition and Complaint against the New York City Department of Education and Carmen Fariña, as Chancellor of the New York City Department of Education (collectively “Respondents” or “DOE”) arises out of Respondents’ repeated failure to determine whether to grant or deny access to information Petitioners have requested as is required by the Freedom of Information Law (“FOIL”). Instead, Respondents have engaged in a pattern and practice of unilaterally granting themselves repeated extensions of time to respond to FOIL requests ad infinitum, thereby flouting their duty under FOIL to make their records available to the public.
2. FOIL requires that within five business days of the receipt of a request for records, an agency must “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.” N.Y. Pub. Off. Law § 89(3)(a) (emphasis added).
Joe Baranello
3. Since September 2014, Petitioners have submitted a number of FOIL requests to DOE. In each case, DOE Central Records Access Officer & Agency Attorney Joseph A. Baranello has acknowledged receipt of the request by letter and stated that “a response is currently anticipated by [x date].”
4. Not once, however, have Respondents granted or denied the request by the anticipated date, and instead Mr. Baranello has sent the following form letter, again and again:
This letter concerns the above-referenced Freedom of Information Law (FOIL) request. Pursuant to section VI.B of Chancellor’s Regulation D-110, due to the volume and complexity of requests we receive and process, and to determine whether any records or portions thereof will be subject to redactions permitted under Public Officers Law §87(2), additional time is required to respond substantively to your request. Accordingly, a response is currently anticipated by [x date].
(hereinafter the “Form Delay Letter”).
5. This Form Delay Letter offers no legally-cognizable explanation for DOE’s unilateral delays in determining whether it will grant or deny a request. Nor does the Form Delay Letter offer an approximate date that is “reasonable under the circumstances of the request.” N.Y. Pub. Off. Law § 89(3)(a). Instead, Respondents completely ignore the circumstances of the request and, without any consideration of how long the determination of whether to grant or deny a particular request should reasonably take or the particular factors that may affect the time for a decision, kick the proverbial can down the road to the Petitioners’ and the public’s detriment.
6. Petitioners are left in limbo – their requests neither granted nor denied – with the only certainty being the receipt of another monthly Form Delay Letter from Respondents gifting themselves more time and abdicating their statutory duty to make their records available to the public. All the while, the Petitioners and the public are left in the dark about the workings and failings of their government.
7. Recognizing that Respondents refuse to even determine whether Petitioners’ requests should be granted or denied – let alone provide Petitioners with the requested documents – in May 2016 Petitioners construed Respondents’ excessive delays in responding as constructive denials of their requests and filed administrative appeals of the constructive denials with the DOE (Ms. Edelman and Mr. Short on May 18, 2016 and Mr. Gonen on May 24, 2016). At the time of filing their administrative appeals, Petitioners were collectively waiting for Respondents to grant or deny twelve separate FOIL requests – five (5) for Ms. Edelman, four (4) for Mr. Short, and three (3) for Mr. Gonen. Petitioners had received between three (3) and fourteen (14) Form Delay Letters for each request, and had been waiting for between four (4) and twenty (20) months for responses to each request. As of the date of this Petition, Petitioners have been awaiting a “yes” or a “no” on each of the remaining ten outstanding requests for between more than six (6) months and more than twenty (20) months.
8. In decisions dated June 6, 2015 and June 8, 2015, the First Deputy General Counsel of the DOE Judy Nathan, on behalf of Respondents, rejected Petitioners’ administrative appeals, finding that the requests had not been constructively denied and were not ripe for review. Ms. Nathan reasoned that because Respondents continued to send monthly extension letters with new “approximate date[s]” for the agency to respond, and because the Chancellor’s Regulation D-110(VIII)(A) considers a request constructively denied only when the request is neither granted nor denied “within the time limits set forth . . . in the acknowledgment letter or
any extension letter(s) . . . ,” no constructive denial could occur so long as DOE continued to send Form Delay Letters.
9. The Chancellor’s Regulation which provides for unlimited “extension letter(s)” is an invalid usurpation of legislative authority, as it is inconsistent with the language and the legislative purpose of Public Officers Law § 89(3)(a) and the Committee on Open Government’s implementing regulations (the “Implementing Regulations”), neither of which authorizes multiple unilateral extensions of time to grant or deny the request.
10. If this provision of the Chancellor’s Regulation is allowed to stand – or if Respondents’ actions here in taking repeated unilateral pro forma extensions of their time to grant or deny a request is condoned as “reasonable under the circumstances of the request(s)” – the entire FOIL would be rendered meaningless and agencies could avoid (or in DOE’s case, continue to avoid) providing public records merely by sending the same pat letter month after month – and avoid any administrative or judicial review by claiming their extensions are not constructive denials.
11. Having now exhausted their administrative remedies, Petitioners now seek (1) a declaration pursuant to CPLR § 3001 that Chancellor’s Regulation D-110(VIII)(A) is invalid and contrary to FOIL and the Implementing Regulations, and that the DOE’s practice of granting itself serial unilateral extensions of time to respond to FOIL requests is unlawful and tantamount to a constructive denial; and (2) an Order pursuant to Article 78 of the New York Civil Practice Law and Rules, directing the DOE to produce all disclosable records responsive to Petitioners’ ten outstanding requests1 within twenty (20) days of the Court’s order; and (3) award Petitioners their the costs and fees, together with such other and further relief the Court deems just and proper.
PARTIES
12. Petitioner NYP Holdings, Inc. is a corporation organized and existing under the laws of Delaware with its principal place of business at 1211 Avenue of the Americas, New York, New York, 10036-8790. NYP Holdings, Inc. is the publisher of the New York Post (the “Post”), the oldest, continuously published daily newspaper in the United States, having first been published by Alexander Hamilton in 1801. Today, the Post is sold in many states in the United States, both at newsstands, by subscription, and digitally via the Internet.
13. Petitioner Susan Edelman is an investigative reporter for the New York Post Sunday edition who covers a variety of news beats including education news. She has reported extensively on education spending, teacher pay, misconduct in education, and a host of other topics of significant public interest.
14. Petitioner Aaron Short is an investigative reporter for the New York Post Sunday edition covering government. Between January 2014 and June 2015 he covered education and state government for the Post’s daily edition. In both roles, he has reported on various issues of significant public interest relating to education and the New York City Department of Education.
15. Petitioner Yoav Gonen is an investigative reporter and the City Hall Bureau Chief for the New York Post. In this role, he has reported extensively on various issues of significant public interest relating to public education and the New York City Department of Education.
footnote1: Since Ms. Edelman and Mr. Short filed their administrative appeal, perhaps fearing this action, Respondents have granted in part two of the nine FOIL requests at issue on their appeal – F#11,479 on May 27, 2016 and F#10,586 on June 17, 2016. The Requests, however, are relevant to Petitioners’ request for declaratory relief under CPLR § 3001.
16. Respondent the New York City Department of Education consists of the Board of Education of the City School District of the City of New York, also known as the Panel for Educational Policy, established by Educ. Law § 2590(b), the Chancellor, and other school employees.2 DOE is an “agency” within the meaning of Public Off. Law § 86(3). Its principal office is located at 52 Chambers Street, Room 308, New York, NY 10007.
17. Respondent Carmen Fariña is the Chancellor of the DOE and is charged with administration of New York City’s public schools, including the provision of academic standards, student placement, school funding, and teacher recruitment. Her principal office is located at 52 Chambers Street, New York, NY 10007.
JURISDICTION & VENUE
18. This Court has jurisdiction pursuant to C.P.L.R. § 7801 et seq. to review the actions by bodies or officers who have failed to perform a duty enjoined on them by law.
19. The court also has jurisdiction pursuant to C.P.L.R. § 3001 to render declaratory relief.
20. Venue properly lies in New York County pursuant to CPLR § 506(b) and CPLR § 7804(b) because that is where DOE’s principal office is located and because it is within the judicial district wherein DOE made the determinations petitioned against and complained of and where it refused to perform the duties specifically enjoined upon it by law.
STATEMENT OF FACTS
I. THE FIRST REQUEST (F#10,586)
21. On September 23, 2014, Mr. Short requested the following records from the DOE
footnote 2: See DOE, Bylaws of the Panel for Educational Policy of the Department of Education of the City School District of the City of New York, http://schools.nyc.gov/AboutUs/leadership/PEP/bylaws/default.htm (last visited Jun. 28, 2016).
(the “First Request”): a list of public school teachers, sorted by school, who have taken between 11 and 20 days off from school in the 2013-2014 school year, and a list of teachers who have taken 20 or more days off. A true and correct copy of the First Request is attached hereto as Exhibit 1.
22. DOE is required to maintain this record. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to employee absences or accruals, employee’s time records covering leave, absences, hours worked and scheduling, vacation schedules, report of absence and request for leave without pay).
23. On September 30, 2014, Mr. Baranello sent a letter to Mr. Short acknowledging receipt of his request and stating that DOE anticipated providing a response by October 29, 2014. A true and correct copy of the September 30, 2014 letter is attached hereto as Exhibit 2.
24. On October 29, 2014, however, instead of receiving a determination of whether the request was granted or denied, Mr. Short received a Form Delay Letter from Mr. Baranello stating that “a response is currently anticipated by December 1, 2014.” Over the next several months, Mr. Baranello sent a series of identical Form Delay Letters to Mr. Short granting DOE unilateral extensions of its time to grant or deny the request to the following new anticipated dates:
• February 2, 2015,
• March 31, 2015,
• April 28, 2015,
• May 27, 2015,
• June 24, 2015,
• September 18, 2015,
• October 19, 2015,
• November 17, 2015,
• December 17, 2015,
• January 21, 2016,
• February 19, 2016,
• March 18, 2016, and
• April 15, 2016.
True and correct copies of the Form Delay Letters related to the First Request are attached hereto as Exhibit 3.
25. At the time Mr. Short and Ms. Edelman filed their administrative appeal on May 18, 2016, the April 15, 2016 deadline had passed and Mr. Short had received neither a substantive response nor even another Form Delay Letter from Respondent.
26. On June 17, 2016, a month after the appeal was filed, more than two months after the most recent “approximate date” for DOE to grant or deny the request had passed, and twenty
one (21) months after Mr. Short filed his initial request, Petitioners received a response from Respondent, granting in part the First Request. Mr. Short was provided with a single excel spreadsheet with the name of every teacher redacted. The amount of time it took to review and redact this single document – Respondents’ stated reason for the delay other than the volume of other requests – took only as long as it would take to type the word “REDACTED” and paste it into two columns of a spreadsheet. A true and correct copy of the Response to the First Request is attached hereto as Exhibit 4.
27. Because DOE took so long to respond to the First Request, the information sought in the request for the 2013-2014 school year is now stale. As a result, Petitioners did not appeal this partial denial.
II. THE SECOND REQUEST (F#10,764)
28. On November 20, 2014, Mr. Short requested the following records from the DOE (the “Second Request”): a list or spreadsheet of arrests of DOE employees and the type of crime or non-criminal incident for which they were charged from January 1, 2010 to November 20, 2014. A true and correct copy of the Second Request is attached hereto as Exhibit 5.
29. DOE is required to maintain this record. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to investigative records and disciplinary proceedings, personnel-related records of reports of allegations of child abuse against school employees and volunteers in an “educational setting”).
30. On December 1, 2014, Mr. Baranello sent a letter to Mr. Short acknowledging receipt of his request and stating that DOE anticipated providing a response by December 31, 2014. A true and correct copy of the December 1, 2014 letter is attached hereto as Exhibit 6.
31. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Mr. Short a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• February 2, 2015,
• March 31, 2015,
• April 28, 2015,
• May 27, 2015,
• June 24, 2015,
• August 20, 2015,
• September 18, 2015,
• October 19, 2015,
• November 17, 2015,
• December 17, 2015,
• January 21, 2016,
• February 19, 2016,
• March 18, 2016, and
• April 15, 2016.
32. At the time Mr. Short and Ms. Edelman filed their administrative appeal on May 18, 2016, the April 15, 2016 deadline had passed and Mr. Short had received neither a substantive response nor even another Form Delay Letter from Respondent.
33. Then, after Mr. Short and Ms. Edelman filed their administrative appeal and almost three months after the most recent “anticipated date” for DOE to respond had passed, DOE sent a fifteenth (15) Form Delay Letter granting itself yet another unilateral extension until
• July 12, 2016.
True and correct copies of the Form Delay Letters related to the Second Request are attached hereto as Exhibit 7.
34. As of the date of this Petition, July 12, 2016 came and went with no response.
This request has been outstanding for more than twenty (20) months.
III. THE THIRD AND FOURTH REQUESTS (F #11,061, F#11,068)
35. On March 4, 2015, Mr. Gonen requested the following records from the DOE (the “Third Request”): a copy of all e-mails sent and received by DOE Press Secretary Devora Kaye on March 3, 2015. A true and correct copy of the Third Request is attached hereto as Exhibit 8.
36. On March 6, 2015, Mr. Gonen requested the following records from the DOE (the “Fourth Request”): a copy of all e-mails sent and received by Ms. Kaye on March 2, 2015. A true and correct copy of the Fourth Request is attached hereto as Exhibit 9.
37. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records for which a FOIL request has been received).
38. On March 11, 2015, Mr. Baranello sent a letter to Mr. Gonen acknowledging receipt of the Third and Fourth Requests, and stating that DOE anticipated providing a response to both by April 7, 2015. A true and correct copy of the March 11, 2015 letter is attached hereto as Exhibit 10.
39. Instead of receiving a determination of whether the requests were granted or denied, Mr. Baranello sent Mr. Gonen a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the requests to the following new anticipated dates:
• May 5, 2015,
• June 3, 2015,
• July 1, 2015,
• July 30, 2015,
• August 27, 2015,
• September 25, 2015,
• October 26, 2015,
• December 28, 2015,
• January 26, 2015 [sic],
• February 26, 2016,
• March 25, 2016,
• April 22, 2016, and
• May 20, 2016.
40. After Mr. Gonen filed his administrative appeal and DOE denied it, DOE sent three additional Form Delay Letters for a total of sixteen (16) Form Delay Letters granting itself
further unilateral extensions until:
• June 20, 2016,
• July 19, 2016, and
• August 16, 2016.
True and correct copies of the Form Delay Letters related to the Fourth Request are attached hereto as Exhibit 11.
41. As of the date of this Petition, this request has been outstanding for more than seventeen (17) months.
IV. THE FIFTH REQUEST (F#11,115)
42. On March 17, 2015, Mr. Gonen requested the following records from the DOE (the “Fifth Request”): a breakdown of the reason for/method of departure for each of the 291 educators/staffers in the ATR (“Absent Teacher Reserve”) pool that Mayor de Blasio has said repeatedly have been “moved” out of the schools system since April 2014, including the teacher’s name, location of last teaching assignment, and reason for/method of departure, as well as copies of any related stipulations of settlement or expedited 3020-A hearing reports. A true and correct copy of the Fifth Request is attached hereto as Exhibit 12.
43. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records for which a FOIL request has been received, as well as records related to substitute teacher registries and terminations).
44. On March 13, 2015, four days prior to submitting the Fifth Request, Mr. Gonen e-mailed Jason Fink of the DOE’s Press Office asking him to provide the same list he later requested in the first part of the Fifth Request. On March 17, 2015, Mr. Fink contacted Mr. Gonen to tell him, “So apparently you have a FOIL request in that seems to cover this.” In response, Mr. Gonen wrote, “It’s true. That doesn’t preclude you from answering sooner. I’d cancel the foil if so.” A true and correct copy of this e-mail chain is attached hereto as Exhibit 13. On March 20, 2015, Mr. Fink sent Mr. Gonen an e-mail containing a chart of the ATR exits with minimal detail in response to Mr. Gonen’s earlier e-mail to the Press Office. This information was provided completely independent of the FOIL process. A true and correct copy of Mr. Fink’s e-mail is attached hereto as Exhibit 14.
45. On March 24, 2015, Mr. Baranello sent a letter to Mr. Gonen acknowledging receipt of his FOIL request, observing that a portion of the request had already been provided to Mr. Gonen, and stating that DOE anticipated providing a response to the remainder of the request by April 20, 2015. A true and correct copy of the March 24, 2015 letter is attached hereto as Exhibit 15.
46. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Mr. Gonen a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• May 18, 2015,
• June 16, 2015,
• July 15, 2015,
• August 12, 2015,
• September 10, 2015,
• October 8, 2015,
• December 9, 2015,
• January 12, 2016,
• March 10, 2016,3
• April 7, 2016,
• May 5, 2016, and
• June 3, 2016.
47. After Mr. Gonen filed his administrative appeal and DOE denied it, DOE sent three additional Form Delay Letters for a total of fifteen (15) Form Delay Letters granting itself further unilateral extensions until:
• July 1, 2016,
• August 1, 2016, and
• August 29, 2016.
True and correct copies of the Form Delay Letters and Mr. Gonen’s e-mail exchange with Mr. Mantell about delays related to the Fifth Request are attached hereto as Exhibit 16.
48. As of the date of this Petition, this request has been outstanding for just under seventeen (17) months.
V. THE SIXTH REQUEST (F#11,479)
49. On July 6, 2015, Ms. Edelman requested the following records from the DOE (the “Sixth Request”): records on the re-scoring of the Regents exams in New York City schools including all records of requests by New York City superintendents and other personnel to re- score the January 2015 Regents exams. A true and correct copy of the Sixth Request is attached hereto as Exhibit 17.
footnote 3: On February 22, 2016, well over a month after DOE’s most recent anticipated date of response (January 12, 2016) had passed, Mr. Gonen wrote to Will Mantell of the DOE press office who sends all FOIL responses on behalf of Mr. Baranello, and asked “hey Will, have you sent anything since this notice? I don’t see anything if you did,” to which Mr. Mantell responded, “Doesn’t look like it. I’ll look into it tmo.” This email exchange is included as part of Exhibit 16.
50. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to Regents exam test results).
51. On July 13, 2015, Mr. Baranello sent a letter to Ms. Edelman acknowledging receipt of her request and stating that DOE anticipated providing a response by August 10, 2015. A true and correct copy of the July 13, 2015 letter is attached hereto as Exhibit 18.
52. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Ms. Edelman a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• September 8, 2015,
• November 4, 2015,
• December 7, 2015,
• January 8, 2016,
• February 8, 2016,
• March 25, 2016, and
• May 20, 2016.
True and Correct copies of the Form Delay Letters related to the Sixth Request are attached hereto as Exhibit 19.
53. On May 27, 2016, a week after the most recent “anticipated date” for DOE to respond had passed, ten days after Mr. Short and Ms. Edelman filed their appeal, and more than ten (10) months after she filed her initial request, Ms. Edelman received a response from Respondent, granting in part her request. Ms. Edelman was provided with a single excel spreadsheet. The amount of time it took to review and redact this automatically generated
information – DOE’s stated reason for the delay other than the volume of other requests – took only as long as it would take to type the word “REDACTED” and paste it into three columns of a spreadsheet. A true and correct copy of the Response to the Sixth Request is attached hereto as Exhibit 20.
54. As with the First Request, because DOE took so long to respond to the Sixth Request, the information sought in the request is now stale. As a result, Petitioners did not appeal this partial denial.
VI. THE SEVENTH REQUEST (F#11,571)
55. On August 12, 2015, Ms. Edelman requested the following records from the DOE (the “Seventh Request”): copies of reports completed or finalized since January 1, 2014 by the Office of Special Investigation (OSI). A true and correct copy of the Seventh Request is attached hereto as Exhibit 21.
56. Among its various responsibilities, the OSI investigates allegations of improper and unlawful behavior, including corporal punishment, verbal abuse against students, and various other forms of misconduct in the DOE. The DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to child abuse or maltreatment reports and related records and complaints about use of corporal punishment against students).
57. On August 19, 2015, Mr. Baranello sent a letter to Ms. Edelman acknowledging receipt of her request and stating that DOE anticipated providing a response by September 17, 2015. A true and correct copy of the August 19, 2015 letter is attached hereto as Exhibit 22.
58. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Ms. Edelman a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• October 16, 2015,
• November 16, 2015,
• December 16, 2015,
• January 20, 2016,
• February 18, 2016,
• April 14, 2016,
• May 12, 2016, and
• June 10, 2016.
59. After Mr. Short and Ms. Edelman filed their administrative appeal and DOE denied it, DOE sent four additional Form Delay Letters for a total of twelve (12) Form Delay Letters granting itself further unilateral extensions until:
• July 11, 2016,
• July 25, 2016,
• August 8, 2016, and
• August 22, 2016.
True and correct copies of the Form Delay Letters related to the Sixth Request are attached hereto as Exhibit 23.
60. As of the date of this Petition, this request has been outstanding for just under twelve (12) months.
VII. THE EIGHTH REQUEST (F#11,677)
61. On October 2, 2015, Mr. Short requested the following records from the DOE (the “Eighth Request”): payroll records for Renewal School Superintendent Amy Horowitz and all staff who work with Ms. Horowitz on the Renewal School initiative for 2015, or for the 2014-2015 school year. A true and correct copy of the Eighth Request is attached hereto as Exhibit 24.
62. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of payroll records). Further, one of the few exceptions to the FOIL’s rule that agencies do not need to create records to respond to a FOIL request is that every agency is required to create “a record setting forth the name, public office address, title and salary of every officer or employee of the agency.” Pub. Off. Law. § 87(3)(b).
63. On October 9, 2015, Mr. Baranello sent a letter to Mr. Short acknowledging receipt of his request and stating that DOE anticipated providing a response by November 9, 2015. A true and correct copy of the October 9, 2014 letter is attached hereto as Exhibit 25.
64. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Mr. Short a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• December 10, 2015,
• February 11, 2016,
• April 8, 2016, and
• May 6, 2016.
65. At the time Mr. Short and Ms. Edelman filed their administrative appeal on May 18, 2016, the May 6, 2016 deadline had passed and Mr. Short had received neither a substantive response nor even another Form Delay Letter from Respondent.
66. Nevertheless, after Mr. Short and Ms. Edelman filed their administrative appeal and a month after the most recent “anticipated date” for DOE to respond had passed, DOE sent three additional Form Delay Letters for a total of seven (7) Form Delay Letters granting itself further unilateral extensions until:
• July 5, 2016,
• August 2, 2016, and
• August 30, 2016.
True and correct copies of the Form Delay Letters related to the Eighth Request are attached hereto as Exhibit 26.
67. As of the date of this Petition, this request has been outstanding for more than ten (10) months.
VIII. THE NINTH REQUEST (F#11,856)
68. On December 2, 2015, Ms. Edelman requested the following records from the DOE (the “Ninth Request”): records of disciplinary action involving school bus drivers and “matrons” or other such aides since December 1, 2014. A true and correct copy of the Ninth Request is attached hereto as Exhibit 27.
69. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to disciplinary proceedings).
70. On December 8, 2015, Mr. Baranello sent a letter to Ms. Edelman acknowledging receipt of her request and stating that DOE anticipated providing a response by January 11, 2016. A true and correct copy of the December 8, 2015 letter is attached hereto as Exhibit 28.
71. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Ms. Edelman a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• February 9, 2016,
• March 9, 2016,
• April 6, 2016,
• May 4, 2016, and
• June 2, 2016.
72. Then, after Mr. Short and Ms. Edelman filed their administrative appeal, DOE sent five additional Form Delay Letters for a total of ten (10) Form Delay Letters granting itself further unilateral extensions until:
• June 30, 2016,
• July 15, 2016,
• July 22, 2016,
• July 29, 2016, and
• August 12, 2016.
True and correct copies of the Form Delay Letters related to the Ninth Request are attached hereto as Exhibit 29.
73. As of the date of this Petition, this request has been outstanding for more than eight (8) months.
IX. THE TENTH REQUEST (F#11,858)
74. Also on December 2, 2015, Ms. Edelman requested the following records from the DOE (the “Tenth Request”): records detailing weapons found or confiscated in city schools in the 2013-2014 school year, the 2014-2015 school year, and the current school year. A true and correct copy of the Tenth Request is attached hereto as Exhibit 30.
75. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to disciplinary proceedings).
76. Ms. Edelman had previously requested and been provided with this exact information by DOE for prior year’s reporting. Recognizing that this data is readily available to Respondent, in an effort to expedite processing of her request, Ms. Edelman attached to her request the similar records DOE released to her in March 2012. A true and correct copy of the DOE’s Response to Ms. Edelman’s previous FOIL request and the two spreadsheets provided (one for each school year) are attached hereto as Exhibit 31.
77. On December 8, 2015, Mr. Baranello sent a letter to Ms. Edelman acknowledging receipt of her request and stating that DOE anticipated providing a response by January 11, 2016. A true and correct copy of the December 8, 2015 letter is attached hereto as Exhibit 32.
78. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Ms. Edelman a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• February 9, 2016,
• March 9, 2016,
• April 6, 2016,
• May 4, 2016, and
• June 2, 2016.
79. Then, after Mr. Short and Ms. Edelman filed their administrative appeal, DOE sent five additional Form Delay Letters for a total of ten (10) Form Delay Letters granting itself further unilateral extensions until:
• June 30, 2016,
• July 15, 2016,
• July 22, 2016,
• July 29, 2016, and
• August 12, 2016.
True and correct copies of the Form Delay Letters related to the Tenth Request are attached hereto as Exhibit 33.
80. As of the date of this Petition, this request has been outstanding for more than eight (8) months.
X. THE ELEVENTH REQUEST (F#11,894)
81. On December 16, 2015, Mr. Short requested the following records from the DOE (the “Eleventh Request”): attendance records for all DOE principals in the 2013-2014 school year, 2014-2015 school year, and in 2015 between September 9, 2015 and December 15, 2015. A true and correct copy of the Eleventh Request is attached hereto as Exhibit 34.
82. The DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to employee absences or accruals, employee’s time records covering leave, absences, hours worked and scheduling, vacation schedules, report of absence and request for leave without pay).
83. On December 22, 2015, Mr. Baranello sent a letter to Mr. Short acknowledging receipt of his request and stating that DOE anticipated providing a response by January 26, 2016. A true and correct copy of the December 22, 2015 letter is attached hereto as Exhibit 35.
84. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Mr. Short a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• March 23, 2016, and
• April 20, 2016.
85. At the time Mr. Short and Ms. Edelman filed their administrative appeal on May 18, 2016, the April 20, 2016 deadline had passed and Mr. Short had received neither a substantive response nor even another Form Delay Letter from Respondent.
86. Nevertheless, after Mr. Short and Ms. Edelman filed their administrative appeal and a month after the most recent “anticipated date” for DOE to respond had passed, DOE sent three additional Form Delay Letters for a total of five (5) Form Delay Letters, granting itself further unilateral extensions until
• June 16, 2016,
• July 15, 2016, and
• August 12, 2016.
True and correct copies of the Form Delay Letters related to the Eleventh Request are attached hereto as Exhibit 36.
87. As of the date of this Petition, this request has been outstanding for more than seven (7) months.
XI. THE TWELFTH REQUEST (F#12,015)
88. On January 25, 2016, Ms. Edelman requested the following records from the DOE (the “Twelfth Request”): records of all procurement card (P-card) expenses by DOE personnel since August 21, 2014. A true and correct copy of the Twelfth Request is attached hereto as Exhibit 37.
89. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating procurements of goods and services and credit card expenditures).
90. As with the Tenth Request, Ms. Edelman had previously requested and been provided with this exact information for the period from September 1, 2013 to August 21, 2014. Again, in an effort to expedite the processing of her request, Ms. Edelman attached to her request DOE’s response to her prior request. A true and correct copy of the DOE’s Response to Ms. Edelman’s previous FOIL request along with a pdf of the first 44 lines of the spreadsheet produced by DOE is attached hereto as Exhibit 38.
91. On January 28, 2016, Mr. Baranello sent a letter to Ms. Edelman acknowledging receipt of her request and stating that DOE anticipated providing a response by February 26, 2016. A true and correct copy of the January 28, 2016 letter is attached hereto as Exhibit 39.
92. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Ms. Edelman a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• March 25, 2015 [sic],
• April 22, 2015 [sic], and
• May 20, 2015 [sic].
93. Then, after Mr. Short and Ms. Edelman filed their administrative appeal, DOE sent six additional Form Delay Letters for a total of nine (9) Form Delay Letters granting itself further unilateral extensions until:
• June 20, 2015 [sic],
• July 19, 2016,
• July 26, 2016,
• August 2, 2016,
• August 8, 2016, and
• August 15, 2016.
True and correct copies of the Form Delay Letters are attached hereto as Exhibit 40.
94. As of the date of this Petition, this request has been outstanding for more than six (6) months.
XII. PETITIONERS’ EFFORTS TO GET DOE TO GRANT OR DENY THEIR REQUESTS
95. Over the course of this extended period of delay, Petitioners did not sit idly by.
96. On November 17, 2015, frustrated with DOE’s dilatory tactics, Ms. Edelman e-mailed Respondent, contesting its practice of sending multiple “form letters delaying compliance with no specific reason.” Specifically, she wrote, “You say the documents will be forthcoming the following month, but I have no confidence that you will send anything other than another form letter with another delay.” Ms. Edelman received no response to her e-mail. A true and correct copy of Ms. Edelman’s November 17, 2015 email is attached hereto as Exhibit 41.
97. Further, on both March 31, 2016 and April 14, 2016, counsel for the Post sent letters to DOE requesting that it respond to the Post’s requests and to inform it that the DOE pattern and practice of delays was unreasonable and contrary to law. In each of these letters, the Post stated that if the requested records were not provided in a timely fashion, the Post would have no choice but to consider DOE’s excessive and repeated delays a constructive denial. Neither Mr. Baranello nor anyone at DOE responded to the Post’s letters. A true and correct copy of the Post’s March 31, 2016 letter is attached hereto as Exhibit 42. A true and correct copy of the Post’s April 14, 2016 letter is attached hereto as Exhibit 43.
XIII. PETITIONERS’ ADMINISTRATIVE APPEALS OF THE CONSTRUCTIVE DENIALS OF THE TWELVE REQUESTS
98. As of May 2016, Petitioners had yet to receive a substantive response to any of the twelve FOIL requests that form the substance of this Petition.
99. Accordingly, on May 18, 2016, Ms. Edelman and Mr. Short timely submitted an administrative appeal of the constructive denials of the First, Second, Sixth, Seventh, Eighth Ninth, Tenth, Eleventh and Twelfth Requests. A true and correct copy of Mr. Short’s and Ms. Edelman’s May 18, 2016 Appeal is attached hereto as Exhibit 44.
100. By letter dated June 6, 2016 from DOE First Deputy General Counsel Judy Nathan, the DOE denied Mr. Short’s and Ms. Edelman’s administrative appeal out of hand. The DOE held that the Requests had not been constructively denied because “according to Chancellor’s Regulation D-110(VIII)(A), a request may be deemed constructively denied only where a requestor ‘is neither granted nor denied access to records within the time limits set forth above [in section V(VI)] or in the acknowledgment letter or any extension letter(s)…’ (emphasis added).” Further, DOE observed that Mr. Baranello had “properly determined that additional time was required” to respond because of “the total number of requests as well as the extensive and voluminous nature of some of the items requested” and that “review and redaction of the requested records . . . are time-consuming.”
101. Ms. Nathan also held that the Sixth Request was moot because on May 27, 2016, a week after the most recent “anticipated date” for DOE to respond had passed, and more than ten (10) months after she filed her initial request, Ms. Edelman received a response from Respondent, granting in part her request. Ms. Edelman was provided with a single excel spreadsheet. The amount of time it took to review and redact this automatically generated information – DOE’s stated reason for the delay other than the volume of other requests – took only as long as it would take to type the word “REDACTED” and paste it into three columns of a spreadsheet. See supra, Exhibit 20.
102. Although Ms. Nathan denied Mr. Short’s and Ms. Edelman’s appeal, she directed DOE to respond to their requests “as expeditiously as possible.” A true and correct copy of DOE’s June 6, 2016 Denial Letter is attached hereto as Exhibit 45.
103. Similarly, on May 24, 2016, Mr. Gonen timely submitted two administrative appeals of the constructive denials of the Third, Fourth, and Fifth Requests. A true and correct copy of Mr. Gonen’s May 24, 2016 Appeal from the constructive denial of the Third and Fourth Requests is attached hereto as Exhibit 46. A true and correct copy of Mr. Gonen’s May 24, 2016 Appeal from the constructive denial of the Fifth Request is attached hereto as Exhibit 47.
104. By letter dated June 8, 2016 from DOE First Deputy General Counsel Judy Nathan, the DOE denied Mr. Gonen’s administrative appeals out of hand. As with Ms. Edelman’s and Mr. Short’s appeal, the DOE held that Mr. Gonen’s requests had not been constructively denied because “according to Chancellor’s Regulation D-110(VIII)(A), a request may be deemed constructively denied only where a requestor ‘is neither granted nor denied access to records within the time limits set forth above [in section V(VI)] or in the acknowledgment letter or any extension letter(s)…’ (emphasis added).” Further, DOE observed that Mr. Baranello had “properly determined that additional time was required” to respond because of “the extensiveness of your various request items,” and that “review and redaction of the requested records . . . are time-consuming.” A true and correct copy of DOE’s June 8, 2016 Denial Letter is attached hereto as Exhibit 48.
105. On July 19, 2016, in response to a request from Petitioners, Kristin O’Neill, Assistant Director of the Committee on Open Government, issued an advisory opinion regarding Petitioners’ requests and whether the Chancellor’s Regulations are consistent with FOIL and the Implementing Regulations. The Committee concluded that “there is no provision in the statute for repeated extensions,” and an “agency is not permitted to establish the right to repeated extensions via regulation, where such right does not exist in statute or in the Committee’s own regulations.” Further, the Committee concluded that it was reasonable for Petitioners to conclude that the receipt of repeated extension notices and failure of DOE to determine Petitioners’ rights of access constituted constructive denials. A true and correct copy of the Advisory Opinion is attached hereto as Exhibit 49.
XIV. OTHER EVIDENCE OF A PATTERN AND PRACTICE OF DELAY
106. On January 13, 2016, Ms. O’Neill issued an advisory opinion at the request of Nairobi Vives, Esq. whose FOIL request to Empire State Development had been similarly delayed by numerous unilateral extensions. There, the Committee also observed that “there is no provision in the statute for repeated extensions,” and opined that after three unilateral extensions by the agency, it was reasonable for the requester to construe the delay in responding as a constructive denial. A true and correct copy of the Advisory Opinion is attached hereto as Exhibit 50.
107. In April 2013, the then-Public Advocate For the City of New York, Mayor Bill de Blasio, issued a report titled “Breaking Through Bureaucracy: Evaluating Government Responsiveness to Information Requests in New York City.” In the report, the Mayor gave the DOE a “D” rating for its handling of FOIL requests in general and an “F” for its response time. Further, the Mayor stated that the failure of an agency to send a “yes” or “no” response six months after the initial request is “unacceptable and represent de-facto denials . . . (and) undermines the spirit of the Freedom of Information Law.” A true and correct copy of the Report is attached hereto as Exhibit 51.
108. On July 28, 2015, New York Post reporter, Carl Campanile submitted a request for copies of reports completed by the DOE OSI that substantiated claims of test or grade tampering/inflation or other cheating in public schools for the 2013-2014 and 2014-2015 school year. This request is nearly identical to – albeit narrower than – the Seventh Request at issue on this petition (OSI reports completed or finalized since January 1, 2014). See supra ¶ 49. On August 4, 2015, Mr. Baranello sent a letter to Mr. Campanile acknowledging receipt of his request and stating that DOE anticipated providing a response by September 1, 2015. Since then, Mr. Baranello sent eleven (11) Form Delay Letters granting DOE unilateral extensions until September 30, 2015, October 29, 2015, January 4, 2016, February 2, 2016, March 2, 2016, March 30, 2016, April 27, 2016, May 25, 2016, June 23, 2016, July 22, 2016, and finally August 19, 2016. This request has now been outstanding for more than a year without a response.
While this request is not at issue in the instant Article 78 Petition, it demonstrates further that DOE is engaged in a pattern and practice of unreasonably delaying responding to FOIL requests. A true and correct copy of the initial request, acknowledgment letter and subsequent Form Delay Letters are attached hereto as Exhibit 52.
FIRST CAUSE OF ACTION
(DECLARATORY JUDGMENT – DOE LACKS AUTHORITY TO ISSUE REGULATIONS IN CONTRAVENTION OF N.Y. PUB. OFFICERS LAW § 84 ET SEQ.)
109. Petitioners repeat and reallege Paragraphs 1 through 108 above, and incorporate such allegations as if fully set forth herein.
110. The public’s right of access to government information is governed by the Freedom of Information Law (“FOIL”), N.Y. Pub. Officers Law § 84 et seq.
111. FOIL requires that “Each agency shall promulgate rules and regulations, in conformity with this article and applicable rules and regulations promulgated . . . pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article”. N.Y. Pub. Off. Law § 87(1)(b).
112. With respect to the timing of determining whether to grant or deny a request, FOIL requires that within five business days of the receipt of a request for records, an agency must “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.” N.Y. Pub. Off. Law § 89(3)(a) (emphasis added).
113. Further, in the event an agency fails to determine whether to grant or deny a request within a reasonable time period, both FOIL and the Implementing Regulations make clear that it constitutes an appealable denial – i.e., a “constructive denial.” N.Y. Pub. Off. Law § 89(4)(a) (“Failure by an agency to conform to the provisions of subdivision three of this section shall constitute a denial.”); 21 N.Y.C.R.R. § 1401.5(e) (“failure to comply with the time limitations . . . shall constitute a denial of a request that may be appealed”).
114. In addition to the plain language of the FOIL, the Implementing Regulations require that if an agency is unable to grant or deny a request within five business days, that it must include an approximate date in the acknowledgment letter if it anticipates disclosing records in twenty days or fewer, or a date certain if beyond twenty days. 21 N.Y.C.R.R. § 1401.5(c)(3). The Implementing Regulations also provide that “failure to comply with the time limitations . . . shall constitute a denial of a request that may be appealed.” 21 N.Y.C.R.R. § 1401.5(e).
115. Neither FOIL nor its Implementing Regulations authorizes agencies to take repeated extensions or afford an agency the option of repeatedly providing “a new reasonable approximate date for the agency’s response” as DOE contends. See Exhibits 45, 48.
116. Nevertheless, Chancellors Regulation D-110(VIII)(A) purports to authorize DOE to issue “extension letter(s)” thereby contravening the express language of the FOIL and the Committee on Open Government’s Implementing Regulations. Specifically, Chancellor’s Regulation D-110(VIII)(A) provides that “A requester who is neither granted nor denied access to records within the time limits set forth above or in the acknowledgment letter or any extension letter(s) may consider the request constructively denied and may appeal such denial in accordance with the procedures set forth below.” (emphasis added)
117. Permitting DOE to send unlimited extension letters without the specter of a constructive denial, as opposed to providing a single reasonable “approximate date” for when it will grant or deny a FOIL request, permits the agency to delay responses in perpetuity, frustrates the public’s right to know, and upends the system of administrative appeals and judicial review as set forth in the FOIL.
118. Chancellors Regulation D-110(VIII)(A) is inconsistent with the language of N.Y. Pub. Officers Law § 89(3)(a) and its underlying purpose as it purports to permit DOE to unreasonably delay and effectively prevent access to government information without judicial review merely by sending monthly letters unilaterally extending its time to grant or deny FOIL requests.
119. DOE acknowledges that it applies Chancellors Regulation D-110(VIII)(A) so as to permit it to send repeated extension letters for months on end provided each letter includes “a new reasonable approximate date” for the agency to respond.
120. DOE also acknowledges that Chancellor’s Regulation D-110(VIII)(A) deems a request constructively denied only when the request is neither granted nor denied “within the time limits set forth . . . in the acknowledgment letter or any extension letter(s) . . .”
121. Chancellor’s Regulation D-110(VIII)(A) is plainly an invalid usurpation of legislative authority and avoidance of judicial review.
122. Chancellor’s Regulation D-110(VIII)(A) has caused, and continues to cause, immediate and irreparable harm to the rights guaranteed to Petitioners and to the public at large under FOIL, Article 1, Section 8 of the New York State Constitution, and the First Amendment to the United States Constitution.
123. The validity or invalidity of Chancellor’s Regulation D-110(VIII)(A) presents a ‘substantial or novel (issue), likely to recur and capable of evading review.’” Hearst Corp. v. City of Albany, 88 A.D.3d 1130, 1131 (3d Dep’t 2011) (alteration in original) (quoting City of New York v. Maul, 14 N.Y.3d 499, 507 (2010)). It is likely that the issue presented here will recur in the future, as the DOE maintains that Chancellor’s Regulation D-110(VIII)(A) entitles it to issue serial extension letters, ad infinitum, in response to FOIL requests.
124. Petitioners have no means to challenge Respondents extended, unilateral, and unreasonable delays. Petitioners have no adequate remedy at law.
125. Accordingly, Petitioners are entitled to a judgment declaring that Chancellors Regulation D-110 is unlawful and/or is inconsistent with N.Y. Pub. Officers Law § 84 et seq. and is, accordingly, invalid.
SECOND CAUSE OF ACTION
(DECLARATORY JUDGMENT – DOE’S PRACTICE OF SENDING REPEATED FORM DELAY LETTERS IS INHERENTLY UNREASONABLE AND CAUSE FOR A CONSTRUCTIVE DENIAL UNDER N.Y. PUB. OFFICERS LAW § 84 ET SEQ.)
126. Petitioners repeat and reallege Paragraphs 1 through 125 above, and incorporate such allegations as if fully set forth herein.
127. The public’s right of access to government information is governed by the Freedom of Information Law (“FOIL”), N.Y. Pub. Officers Law § 84 et seq.
128. With respect to the timing of determining whether to grant or deny a request, FOIL requires that within five business days of the receipt of a request for records, an agency must “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.” N.Y. Pub. Off. Law § 89(3)(a) (emphasis added).
129. Further, in the event an agency fails to determine whether to grant or deny a request within a reasonable time period, both FOIL and the Implementing Regulations make clear that it constitutes an appealable denial – i.e., a “constructive denial.” N.Y. Pub. Off. Law § 89(4)(a) (“Failure by an agency to conform to the provisions of subdivision three of this section shall constitute a denial.”); 21 N.Y.C.R.R. § 1401.5(e) (“failure to comply with the time limitations . . . shall constitute a denial of a request that may be appealed”).
130. Neither FOIL nor its Implementing Regulations authorizes agencies to take repeated extensions or afford an agency the option of repeatedly providing “a new reasonable approximate date for the agency’s response” as DOE contends. See Exhibits 45, 48.
131. DOE has taken the position that sending as many as sixteen separate Form Delay Letters and failing to determine whether to grant or deny a request for as many as twenty-one (21) months is reasonable under the circumstances of a request that calls for the production of a single document.
132. DOE has also taken the position that it may send as many Form Delay Letters as it wants without triggering a constructive denial so long as it sends an extension letter within the time limit set forth by its prior extension letter.
133. DOE’s interpretation of Chancellor’s Regulation D-110(VIII)(A) and the FOIL in general has caused, and continues to cause, immediate and irreparable harm to the rights guaranteed to Petitioners and to the public at large under FOIL, Article 1, Section 8 of the New York State Constitution, and the First Amendment to the United States Constitution.
134. Whether it is reasonable for DOE to take numerous unilateral extensions of its time to determine whether to grant or deny a request presents a ‘substantial or novel (issue), likely to recur and capable of evading review.’” Hearst Corp. v. City of Albany, 88 A.D.3d 1130, 1131 (3d Dep’t 2011) (alteration in original) (quoting City of New York v. Maul, 14 N.Y.3d 499, 507 (2010)). It is likely that the issue presented here will recur in the future, as the DOE maintains that its actions of sending unilateral extension letters for up to twenty one (21) months if not longer for requests that call for the production of a single document is inherently reasonable.
135. Petitioners have no means to challenge Respondents extended, unilateral, and unreasonable delays. Petitioners have no adequate remedy at law.
136. Accordingly, Petitioners are entitled to a judgment declaring that Respondents’ interpretation and application of Chancellors Regulation D-110(VIII)(A) authorizing it to send repeated unilateral extension letters is unlawful and/or is inconsistent with N.Y. Pub. Officers Law § 84 et seq.
THIRD CAUSE OF ACTION
(ARTICLE 78 PETITION – DIRECTING DOE TO PRODUCE RECORDS RESPONSIVE TO OUTSTANDING REQUESTS)
137. Petitioners repeat and reallege Paragraphs 1 through 136 above, and incorporate such allegations as if fully set forth herein.
138. Article 78 of New York’s Civil Practice Law & Rules is the appropriate method for review of agency determinations concerning FOIL requests.
139. The Requests reasonably described the requested records.
140. The information requested is of significant interest to the general public.
141. DOE has engaged in a pattern and practice of failing to comply with its obligations under New York Public Officers Law Section 84 et seq., and Respondents’ Chancellor’s Regulation D-110 by routinely ignoring statutory deadlines, constructively denying requests and ultimately failing to disclose to Petitioners the requested documents to which they are entitled.
142. The DOE’s failure to perform its duties violates the letter and spirit of FOIL, which provides for open disclosure to the public.
143. So long as the DOE maintains its pattern and practice of non-compliance with FOIL, Petitioners are profoundly hindered in their ability to report on the government – the “public’s business” – and hold the DOE accountable for its practices. The DOE has in its trust the City’s children and how it executes that trust is of supreme public concern. See Pub. Off. Law § 84.
144. DOE’s actions have caused, and continue to cause, immediate and irreparable harm to the rights guaranteed to Petitioners and to the public at large under FOIL, Article 1, Section 8 of the New York State Constitution, and the First Amendment to the United States Constitution.
145. Petitioners have exhausted their administrative remedies and have not obtained the requested records.
146. At least with respect to four of the twelve FOIL requests at issue (the First, Second, Eighth, and Eleventh Requests), Respondents failed to grant or deny access to records even within the time limits set forth in their extension letters. Accordingly, even crediting Respondents’ own interpretation of the Chancellor’s Regulation, these four requests at a minimum have been constructively denied and are ripe for decision.
147. To the extent DOE claims as it did in its June 6, 2016 and June 8, 2016 denials of Petitioners’ administrative appeals that Petitioners have failed to exhaust their administrative remedies because DOE has not yet granted or denied their Requests, the exhaustion of administrative remedies under DOE’s conception thereof would be futile since DOE repeatedly and unreasonably delays making any decision granting or denying their requests.
148. As a result of the foregoing, DOE has violated FOIL.
149. Petitioners have no adequate remedy other than this proceeding, and no previous application for the relief requested herein has been made to the court
PRIOR APPLICATION
150. No application has been made for the relief requested herein.
PRAYER FOR RELIEF
WHEREFORE, Petitioners respectfully request that this Court grant judgment:
(1) Declaring that Chancellor’s Regulation Chancellors Regulation D-110(VIII)(A) is unlawful and/or is inconsistent with N.Y. Pub. Officers Law § 84 et seq. and is, accordingly, invalid;
(2) Declaring that the DOE’s practice of sending repeated Form Delay Letters is inherently unreasonable and that determinations in its administrative appeal decisions that it may continue to deny access to public records because it has re- issued serial unilateral extensions violates its obligations under FOIL, N.Y. Pub. Officers Law § 84 et seq.;
(3) Granting Petitioners’ Article 78 Petition, finding that DOE has constructively denied Petitioners’ requests, that Petitioners have exhausted their administrative remedies, and directing DOE to produce all disclosable records responsive to Petitioners’ outstanding requests within twenty (20) days of the Court’s order;
(4) Awarding Petitioners their costs and attorneys’ fees pursuant to Public Officers Law § 89(4)(c); and
(5) Awarding Petitioners such other and further relief as the Court deems just and proper.
Dated: New York, New York August 9, 2016
Respectfully submitted,
Laura R. Handman
Jeremy A. Chase
DAVIS WRIGHT TREMAINE LLP
Tel.: (212) 489-8230
Fax: (212) 489-8340
laurahandman@dwt.com jeremychase@dwt.com
Attorneys for Petitioners-Plaintiffs
NYP Holdings, Inc., Susan Edelman, Aaron Short, and Yoav Gonen
Summons-Complaint
MOL
AFFIDAVIT of Attorney Jeremy A. Chase
RJI
