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Showing posts with label NY POST. Show all posts
Showing posts with label NY POST. Show all posts

Monday, April 4, 2022

NY POST's Karol Markowicz: End The Toddler Mandate

 

School staff and parents have spoken out against the mask mandates for the city’s youngest students.
(Kevin C. Downs for The New York Post)

Advocatz applauds the NY POST for supporting parents on the issue of masking 2-4 year olds. The policy is absurd, considering that all the Mayor is doing is showing his ego. Mayor Eric Adams was just elected a few months ago but wants everyone to see how everyone must do as he says because he's the BOSS. 

This makes no sense in a democratic society and even in a city where parents have no voice at all (we are under Mayoral control). I have heard from my sources in the pre-k classrooms that toddlers are not being forced to comply. Well, what do you say to that, Mayor Adams? Are you going to tell your friend Chancellor Banks to implement suspensions for these 2-4 year olds? 

Of course not. Are you going to send each teacher of a toddler who takes off his/her mask to a rubber room and then charge them with insubordination at a 3020-a? Possibly, in today's random disciplinary procedure mess.

See my previous post:

The "Who Are You Kidding Award" Goes To Mayor Eric Adams



Enough: New Yorkers must demand an end to Adams’ toddler mask mandate

New York has done it again. The city has managed to find the most useless, but harmful, policy possible to impose on the safest segment of the population.

On Friday, Mayor Eric Adams and his health commissioner, Ashwin Vasan, announced that children aged 2 to 4 will have to remain masked in day-care and pre-school settings. No other age group is forced to mask similarly.



On Nov. 7, 2021, I tweeted, “It would be something if the last people masked were toddlers. It would be the icing on the whole mismanaged pandemic cake.”

People pass it around as if I were prescient. But the reality is that I had seen bad health-care policy up close in New York, where the thing that made the least amount of sense in fighting COVID was what we did.

Masks for the 3-foot walk from the maĆ®tre d’ stand to the table? That’s us!

Closing (only public) schools on the teachers’ union say-so when the city hit a ridiculous 3% of positive tests, which meant that 97 healthy people tested negative for every 100 instead of the 98 of the previous day? Us again.

A vaccine mandate for a virus that spreads despite vaccination, with a special carve-out for visiting athletes and performers but not those who live here? Building indoor shacks on the sidewalk so restaurants can call it “outdoor dining”? Canceling outdoor events like New Year’s Eve in Times Square? Masking kids at public schools outdoors into winter 2022? That’s so New York.

Announcing the continuation of masking toddlers, something no other Western country did at any point in the pandemic, Vasan said, “We want to keep an eye on this latest uptick to ensure that our youngest New Yorkers remain safe, as we see an increase in cases due to the more infectious BA.2 subvariant. As we know in the past, cases and hospitalizations have risen in this vulnerable age group, in line with wider community spread, usually lagging by a couple of weeks.”

This is, simply, a lie. New York City’s “alert level” is green, “low.” COVID hospitalizations for kids under 18 are 0.5 per 100,000 and have been for months.

Meanwhile, the over-70 set is at 4.7 per 100,000, and they can traipse around the city maskless licking lampposts and snogging strangers. If it sounds like it doesn’t make sense, that’s because it doesn’t and never has. 

The commissioner absolutely knows it’s a lie. Two days earlier, he tweeted a chart showing kids under 5 with the city’s lowest case rates.

The worst part is that city attorneys responded to a lawsuit challenging the toddler mask mandate by arguing that as of April 4, “the petitioners’ children will no longer be required to wear masks in child-care settings,” so there was no danger of “immediate and irreparable injury, loss or damages.” Liars.

The judge struck down the mandate Friday — and Adams immediately said he planned to appeal.

Michael Chessa, the parents’ attorney, told me, “These mandates are anti-science, anti-child, anti-parent and, according to last week’s court decision, against the law. Each day that goes by where Mayor Adams keeps these mandates in place is a stain on his legacy.” (Ed.:In a tweet, Chessa wrote:

"Not only did he [Adams] go back on his word, he had lawyers argue "irreparable harm" to NYC if the mandate wasn't in place.")

In life, there are trade-offs. If the argument went, “Kids will mask, and we will risk them having speech and cognitive delays, because they are uniquely at risk from COVID and this is how we protect them,” that might be understandable.

Instead, toddlers will mask, they will risk speech and cognitive delays, and it will offer absolutely no protection from COVID.

Even if masks worked for the older set, which has never been proven by a study with a control group, the under-5s could never wear them correctly. This demographic is also not prioritized for vaccination because they simply don’t need it.

COVID has largely spared children. Vasan’s own data show this. We’ve known this since the early days, and yet kids continue to be targeted with imbecilic policies that have harmed them a lot and protected them not at all.

Dr. Ashwin Vasan said the city has seen “an increase in cases due to the more infectious BA.2 subvariant.”
Gabriella Bass

Vasan added, “This afternoon, we’re asking for a bit more patience and a bit of grace.”

New Yorkers should simply say no. No more patience and certainly no more grace. The commissioner doesn’t deserve it. His policies make no scientific sense, and in a saner time New Yorkers would call for his firing.

Instead of listening to bad advice and masking only the segment of the population that has never needed it, the mayor must man up and take control of his city. He’s only been in office for a few months, but this idiotic policy suggests he’s adrift.

Right the course, Mayor Adams, or we will remember you alongside Mayor William O’Dwyer. Who is that? Exactly.

Twitter: @Karol

Friday, November 20, 2020

NYPOST Exclusive Gets the Heat Turned On in a Harlem Building

 

The city installed a temporary boiler at a Harlem building cited in a Post
exclusive. [photo: Matthew McDermott]

Heat’s on in one Harlem building — but why did it take a Post story to get done?

NYPOST Editorial Board, November 19, 2020

Oh yeah, congrats to the NYPOST! The media is powerful and should understand the consequences of lying or cheating the public out of getting the facts.

  Betsy Combier

Editor, Inside 3020-a Teacher Trials  

Thanks to The Post’s reporting, tenants of a six-story apartment building in Harlem can add hot water to their list of things to be grateful for this Thanksgiving.

Three days after our reporters exposed a landlord for letting his tenants go weeks without heat or hot water, the Department of Housing Preservation and Development came through with an emergency boiler just in time for the holidays.

The busted boiler at 2035 Adam Clayton Powell Boulevard had been problematic for years, but landlord Emmanuel Ku ignored all complaints, which seems to be his pattern: HPD has found 1,989 violations in 10 of Ku’s buildings over the years, with 466 of the problems still unfixed.

In this case, it ordered fixes made last week — but it wasn’t until The Post made the problem public that HPD delivered its own emergency solution.

We’re glad this building’s residents no longer lack hot water and heat as new pandemic restrictions kick in, but we have to wonder how many other New Yorkers aren’t getting such swift action because their plight hasn’t made the papers.

The Post is committed to offering reliable local reporting. We wish city government were as committed to getting its job done.

Saturday, July 21, 2018

New Rochelle Principal Resigns Amidst Grading Scandal and is Hired By NYC DOE Chancellor Carranza As Director of School Quality

Mayor de Blasio and First Lady Chirlane McCray arrive with city schools Chancellor Carmen FariƱa and New York City's next schools chancellor Richard Carranza and his wife for a news conference at City Hall. (James Keivom/New York Daily News)
New York City is the hub of the secret national public education policy wheel called "changing grades to look good." Here in NYC we hide it under such alternative titles as "credit recovery" and "student portfolios".  The goal is to get all students through the school year with enough credits to move up or out.

To anyone who reads the daily newspapers in NYC, especially the New York POST, grade changing by Principals is widespread. Unfortunately, teachers are charged with grade changing, and punished, or are charged with insubordination/misconduct if they DON'T change grades. This is the most absurd, arbitrary and capricious of all the policies in the current NYC DOE teacher discipline 3020-a process, aside from the procedural errors of law which I have exposed in the Cardinale case.

In my post about DeWitt Clinton High School Principal Pierre Orbe I re-posted a New York Times article about grade changing at Wadleigh High School in 2008. Back then, I was still shocked to hear that a student who never showed up for class still got the necessary credits to graduate. Now, grade changing is all over the place and is embedded in the NYCDOE Grading policy.

The policy only helps those who don't care that kids are not learning anything but are graduating from High School anyway. This is just another example of passing the buck, or pushing consequences off to someone else, the future, or the universe. In this group are students, parents, staff and administrators - a few or many from each section of the education community. What is surprising is that there are so many people at the top who agree to this public sham.

The largest group who don't care about getting kids through the school year even if they don't show up are, it seems to me, the Principals. Indeed, the NYC Department of Education is well-known for rewarding principals for changing grades. A low graduation rate means possible termination, removal, public outcry and at least embarrassment for the principal. The mandate for Principals is to "improve" student grades so that the school looks good.

One of my greatest joys is to see the widespread hope that the education community has toward change. I try my best to go with the flow, but sometimes it is simply impossible. Like when Mayor Bill DeBlasio appointed Carmen Farina as Chancellor. I and others who knew very well that she was the wrong choice due to her disdain for teachers, truth in grading, equal opportunity and the public voice of parents. We tried to convince the DeBlasio team before the appointment. We obviously failed.
Mr. Carranza embracing the outgoing chancellor, Carmen FariƱa, with his wife Monique after the
March 5 news conference announcing his hiring.CreditKevin Hagen for The New York Times

Currently, we are in a new era, that of the NYC DOE being under the control and authority of a new Chancellor, Richard Carranza. He comes to us all the way from Texas, no less? Why? Because Mayor DeBlasio could not find a suitable person in New York City. There aren't any. I, personally, have no hope for a good change in any policy of the NYC DOE at this point, and the resignation of Reginald Richardson from the position of Principal of New Rochelle High School does not make me feel better.

The article posted below says that Principal Richardson resigned in the midst of a grade probe, and is now hired by the NYC Department of Education as the Director of School Quality. He starts at the end of August.

Really.

BREAKING NEWS:

According to Susan Edelman at the New York Post, after a call was made to the Department of Education about the hiring of Mr. Richardson, the offer was rescinded.

Thanks Sue!

Let's hope that Chancellor Carranza soon realizes that he has a very informed public here in NYC, and there will be scrutiny of his every move. Are you ready Mr. Carranza?

The NY Daily News reported on Sunday July 22, 2018, that Mayor DeBlasio is dragging his feet in the sex harassment cases inside NYC schools. Reporter Ben Chapman writes:

"In addition, city Schools Chancellor Richard Carranza's actions have been at the center of a $75,000 sex discrimination settlement in his previous district of San Francisco in 2016. Carranza has denied the charges in the suit. As the Daily News has reported, the suit was brought by a veteran educator who alleged Carranza ruined her career after she called him out for flirting at a conference with another woman.

De Blasio has said he doesn't believe the claims in that case, and has maintained Carranza was properly vetted for his current job, even though the city didn't contact the plaintiff or her lawyer in the sex discrimination case."

Betsy Combier
betsy.combier@gmail.com
betsy@advocatz.com
ADVOCATZ.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Reginald Richardson

New Rochelle High School Principal Reggie Richardson resigns amid grade probe
, cwilson2@lohud.comPublished 6:00 a.m. ET May 23, 2018
New Rochelle High School Principal Reginald Richardson resigned today effective in August, the second high-ranking official to announce his leaving the district recently.

The announcement comes in the middle of an investigation into whether grades were inflated by way of an online credit recovery program and a rash of violence earlier this year that included the stabbing death of high school student Valaree Schwab.

Richardson will leave the school district on Aug. 20 to serve as the Director of School Quality with the New York City Department of Education.

"Although this past year has been one of incredible challenges, I have been inspired by the resilient spirit that this school community has demonstrated," Richardson said in a statement. "It is a reflection of your unwavering commitment to provide our students with the best of yourselves."

GRADE INFLATION: New Rochelle High School grade inflation probe launched for online course program

RE-REGISTRATION: New Rochelle schools' re-registration under microscope after NYCLU, community concerns

OSBORNE: After 'challenging' year, New Rochelle schools superintendent leaving next summer

Superintendent Brian Osborne, who also announced his intention to leave the district after next year, wished Richardson well in his new role.

"Mr. Richardson has served New Rochelle High School with devotion since becoming principal in July 2013. We thank him for his contributions to the City School District of New Rochelle," Osborne said.

Osborne said the school district will begin an immediate search for Richardson’s replacement.

The school district will look for a new principal while undergoing a re-registration plan that was recently scrutinized by the New York Civil Liberties Union the plan “may discriminate against homeless students, those from low-income households, immigrants and students of color.”

Twitter: @ChrisEberhart2

Thursday, April 5, 2018

Betsy Combier Unravels 3020-a Arbitration in New York City


Lawline
Betsy Combier 
Editor, ADVOCATZ.com
Editor, ADVOCATZ
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, NYC Rubber Room Reporter
Editor, NYC Public Voice
Editor, National Public Voice
Editor, Inside 3020-a Teacher Trials 

For fourteen years I have been researching the 3020-a Arbitration charging process used in New York City, and in particular the omission of a vote in Executive Session by the New York City Panel For Educational Policy which is mandated by Education Law 3020-a(2)(a). I ignored the verbal attacks by attorneys who chose to threaten me with doom if I continued to ask for the vote - and I went to both NYSUT and Department of Education Attorneys working on 3020-a cases.
Betsy Combier

  I have never received a rational response to "Betsy's Motion", until Judge Green stepped into the fray. On March 29, 2018, Judge Green in Richmond County Supreme Court granted the petition of Rosalie Cardinale wherein we argued that her right to a fair 3020-a hearing was denied by an unlawful determination of probable cause. Ergo, my argument that the 3020-a process in New York City has a lawless charging procedure.

What does that mean? What you want it to.
           
Editor, ADVOCATZ.com
Editor, ADVOCATZ
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, NYC Rubber Room Reporter
Editor, NYC Public Voice
Editor, National Public Voice
Editor, Inside 3020-a Teacher Trials 
Betsy Combier
ADVOCATZ
betsy.combier@gmail.com
917-596-1762

UPDATE April 7, 2018:

On April 5, 2018, a recently terminated teacher who used NYSUT for her 3020-a Arbitration, sent me the following email from /to her NYSUT Attorney:

"Date: April 5, 2018 at 12:23:45 PM EDT

"I spoke to a lawyer about the Staten Island decision and he had a warning shot for the UFT. I am not sure why i would have to hire a private lawyer to have my case revisited when the UFT has a duty to all terminated tenured teachers that can’t be brushed away in light of this decision.  The Uft opens itself up to personal liability if it fails to take action - such as intervening in the Staten Island case or bringing its own case against the DOE that is appropriate to protect the collective bargaining rights of tenured teachers who were improperly termination under the Staten Island decision. The UFT would be making a seriously unwise strategic decision if it were to do nothing simply because there are competing lower court decisions on the issue.  The UFT’s liability would be subject to appellate decision(s) that are unpredictable.  My case was never presented to the PEP and I would appreciate knowing how the Union intends to help people in my position in light of this decision.
Please advise."

The NYSUT attorney responded:

"I have now read the entire decision and the content of the Post article and any advice you are receiving which is the basis of your e-mail is misleading.

The Judge in the Staten island case did not rule that all 3020a cases have to be voted upon by the PEP in order to be validly brought. In fact, the Judge accepted the reasoning of other courts that the Chancellor (Farina) can delegate the authority to find probable cause and bring charges to Superintendents who can then delegate that authority to principals. What the Judge found was that in this case the DOE/ NYC Corporation Counsel failed to provide him with proof of such written delegations of authority.

The case you cite to is just the result of poor lawyering on the part of the DOE's counsel in the matter. The Delegation letters in question exist and my office has copies of those letters. When Chancellor Farina was installed we demanded copies of such letters from the DOE in order to ensure that the law was being respected/followed and that all cases were being properly brought. As a result, this office is satisfied that the law is being followed and that findings of probable cause underlying 3020a charges are being properly made.

I understand your frustration and anger. However, this decision is not a basis to challenge any 3020a result."

Hmmmm. First, I don't believe that Judge Green wrote that he 'accepted' that "Chancellor (Farina) can delegate the authority to find probable cause, and all the NYC DOE has to do is get the paper saying that the Chancellor delegates "...authority to [do anything]" and boom, probable cause is determined? That's just plain unfair and unjust.


I of course have the backstory on the "Delegation" statements by signed by Chancellors Klein, Black, Walcott, and Farina, submitted to countless arbitrators. They are worthless. Yep, that's what I have said, what I am saying, and what I will say, and I can prove it. In my work, I know that there is always a DOE Attorney and/or a NYSUT Attorney who will gladly say that I'm wrong, I don't know anything, I am not an Attorney, etc (I'm NOT an attorney, so that part is good), so I have spent 10 years coming up with facts and research to back up what I say and write.


How does the decision of Judge Green affect tenured teachers who have been given an unfair 3020-a decision in New York City?


We dont really know yet. What we do know is that we are ready to assist any DOE employee who has been charged with 3020-a in New York City (or New York State). We believe that every case is unique, and therefore we need to look at the circumstances in each case very carefully. Teacher trials are serious events.
As the paralegal in the Article 75 Appeal of Rosalie Cardinale, a teacher in Staten Island, we are saying that due to the Department' s desire for speed above rights, no vote in Executive Session took place at the Panel For Educational Policy, and therefore no arbitrator has subject matter jurisdiction and cannot hear evidence or decide on penalty. Our win in Staten Island for Rosalie changes the landscape of tenure rights and 3020-a, big time.

I have been working on 3020-a hearings for more than 17 years (I have worked on about 107 cases) We believe that Ms. Cardinale's termination at 3020-a arbitration in New York City was not rational, and Arbitrator Michael Lendino lawlessly took on the case (at $1400/day) despite our submission of "Betsy's Motion" to Dismiss For Lack of Subject Matter Jurisdiction, now cited by Staten island by Judge Green.



The NY POST got the story first:
DOE took illegal steps to fire tenured teacher: judge
Selim Algar, NY POST, April 3, 2018

City teachers facing termination have been thrown a legal life preserver.

In a precedent-setting decision, a Staten Island judge ruled last week that the Department of Education took illegal shortcuts in firing a tenured teacher.

Judge Desmond Green said that a termination hearing can take place only after a vote by the Panel for Educational Policy establishes probable cause.

Green said the DOE ignored that requirement in canning Rosalie Cardinale and ordered her reinstated.

Longtime advocate Betsy Combier, who worked on Cardinale’s case, said the DOE has ignored the law for more than a decade — and thinks Green’s ruling sets a precedent to challenge other firings.

“This is huge,” she said. “This is a protection we are supposed to be giving tenured teachers. For all these years, they have not gotten it. It’s not right.”

Neglecting the probable- cause vote “violates Petitioner’s due-process rights and violates New York’s strong public policy protecting the integrity of the tenure system,” Green wrote in his decision.

Cardinale’s lawyer, Jonathan Behrins, said the DOE purposefully avoids the PEP vote because it exposes dubious terminations to more scrutiny.

A city Law Department spokesman defended Cardinale’s firing.

“We believe DOE’s determination was appropriate and lawful,” said spokesman Nick Paolucci.
**************************
For 14 years as a teacher advocate in New York, my focus has been assisting educators with problems concerning their workplace, and/or, if they were tenured, researching the backstory of 3020-a charges served on them in the rubber room or reassignment.

In New York City, I knew that the controlling Law for 3020-a arbitration is Education Law 3020-a. It says so in the charging papers. But Ed Law 3020-a (2)(a) says that there must be an Executive Session and a vote by the school board (in NYC the "PEP") on probable cause for the charges before the charges are served. In NYC, this Executive Session never takes place and there is no date in the charging papers for this meeting and vote.

For many years teachers charged with 3020-a Specifications received the 3020-a charges ("Specifications") with APPENDIX A in the packet. I asked NYSUT and the DOE why this was sent out to all tenured charged educators if there was no compliance in NYC, and the answer was always, "that's the way it is".

I used to attend PEP meetings and spoke about the "Executive Session" being held before the public meeting began, which is a violation of Open Meetings Law #105.  I collected Agendas with this violation of Open Meetings Law from 2006-2013, and continuously asked 
why all the PEP members since I started attending the meetings have violated Open Meetings Law...why weren't they held accountable? I also spoke about my dismay that the charging process for teacher tenure hearings was a violation of the tenure law, in my non-attorney opinion. Please make note of the fact that I know some members personally, and have NO gripe against anyone personally, only as an official member of the PEP, where all New York State Laws are to be complied with.

When speaking at PEP meetings I carefully tried my best to take less than 2 minutes, leaving 45-50 seconds for former NYC schools Chancellor Joel Klein to give me an answer. He rolled his eyes, sometimes looked at DOE General Counsel Mike Best with his "there she goes again" look and took 10 seconds to tell me " your time is up, Ms. Combier, next speaker please" and 10 seconds for me to say "...but you didnt answer my question..."

I did not attend PEP meetings since then because they are useless, except for the PEP meeting on Feb 28 2018, where the two schools I was helping, MS 53 and PS/MS 42, were allowed to continue, open and free.

I have been writing about the PEP and teacher tenure on my blogs and websites since 2007, and I have submitted these issues to the DOE Attorneys as well as the Attorneys I work with and NYSUT, for at least that long, if not longer (I started working with teachers in 2003). I now assist at 3020-a as a member of the legal team (Im not an attorney). An educator charged with 3020-a does not need an Attorney in arbitration, but if anyone goes Pro Se, I highly recommend an assistant to help with the process. I do that, but I most often work with attorneys.

In 2003 I started asking all of the Attorneys I knew why there was no compliance with this section of Ed Law 3020-a. The answer I received always was, "...because that's the way it is", or "Don't worry about it". But I did worry about it, and when I began working on 3020-a hearings as an assistant to teachers who wanted to be pro se (without an attorney) or who wanted me and a private attorney to be the legal team, we always presented a Motion To Dismiss on the issue that if there was no vote on probable cause, then the arbitrator had no authority to proceed to a decision, and any decision was invalid.

We were denied on our Motion in the Supreme Court until Judge Desmond Green saw it differently:

“The DOE’s failure to make a finding of probable cause and adhere to the procedural protections guaranteed to Petitioner in Education Law § 3020-a violates Petitioner’s due process rights and violates New York’s strong public policy protecting the integrity of the tenure system.”

It appears that this decision unravels the 3020-a panels and nullifies the decisions made by any arbitrator who refused to grant the Motion To Dismiss on the basis of a lawless determination of probable cause signed by a Principal or Superintendent. There is no rule, law, or memo that specifically gives either Principals or Superintendents the authority to sign that paper, NOTICE OF DETERMINATION OF PROBABLE CAUSE.

I am writing a book about my experiences in 3020-a hearings after I brought up this issue.

The Department Attorneys have submitted responses, or Opposition to the Motion To Dismiss that range from the boring to the funny and ridiculous. One theme always appears: the Chancellor has the right to charge anyone, and can delegate this authority to anyone.

Again, I am not an attorney, but preferring, or serving, charges on tenured educators is not the same as determining "probable cause". My final answer.

Sunday, August 14, 2016

The NY POST Sues The New York City Department of Education For Freedom of Information (FOIL) Violations

Joe Baranello
See also Parentadvocates.org

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





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
           
http://www.parentadvocates.org/graphics/spacer.gif
http://www.parentadvocates.org/graphics/spacer.gif
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 FariƱa, 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 FariƱa 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
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