A Freedom of Information Request That Could Have Gone Very Wrong - But Didn't (2006)

 

The post below is not new, but I love it for the sheer audacity of former NYC DOE General Counsel Michael Best for allowing two pages of my personal notes to be ripped out of my notebook and taken away because they had "information I was not supposed to see". I was determined to get those two pages back. Read and find out what happened!

By the way, when investigating government information and emails or asking anything about social media, check local and state laws before launching a search, lock down the parties’ statements regarding their individual social media accounts, and secure clearance to access any non-public accounts. If the matter has a high risk and/or exposure level, request that an experienced expert obtain the data and provide a "defensible, reliable chain of custody" (Best Practice - "BP) regarding evidence pulled from social media. I always stay in line with industry best practices.

Enjoy the best show in town - the New York City Department of Education. Lol

just sayin'...

Betsy Combier

Betsy Combier

betsy@advocatz.com

Editor, ADVOCATZ.com

Editor, ADVOCATZ Blog

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

A Look Back: My Birthday Card From the Rubber Roomers at 25 Chapel Street, and a FOIL Incident With Former General Counsel Michael Best

I found my birthday card from the rubber roomers at 25 Chapel Street (2006?)!!!

So happy. Thanks, people!!! See below.

The UFT members at 25 Chapel street were my first connection to the rubber room saga that would change my life, alter the life of my children and allow me to start my company ADVOCATZ. (Current Website is ADVOCATZ.com).

I will forever be grateful to David Pakter, Polo Colon, Steve Ostrin, and all the wonderful people who talked with me about their troubles. I was then, and continue to be, honored with your trust.

By the way, my birthday is 7-11. July 11, not October (I'm re-posting the birthday card now because I just found it)..

Betsy Combier
President, ADVOCATZ
Editor, NYC Rubber Room Reporter

Strange things happen when you try to get information from the New York City Board of Education
by Betsy Combier
June 2009

Courtney Ross

Under the Bloomberg/Klein administration, public school buildings are "plants" (as in factories) and every inch must be used for the assembly line workers (teachers) to complete the widgets (children) for the marketplace (graduation, technical jobs, etc). This may sound rather harsh, but try as hard as I can to find another picture that fits the pattern and practice of the people at Tweed over the past 7 years, I cant come up with any other scenario.

Company business must be protected at all times, of course, and this means that workers always must be present and willing and able to work, at all times. Sickness and family obligations that take you away from your job for any amount of time are simply weaknesses that you must be punished for. If you are a child with special needs and you have a parent who knows what to do to protect you, and does not bend with the threats, barrage of wrong information couched in "the law" as seen by the managers (ISC and Superintendents, the CEO Klein and his vice-president Michael Best) and other such deviations from the facts, then you may be fine. Similarly, if you are a parent or teacher, and you have the evidence necessary to prove what you are saying if true, JUST SAY NO to the NYC BOE when they try to allege anything about you, your actions, your character, family, or rules.

I'm a parent of four daughters who are and have been in the public schools of New York City, and I and all of them have been harmed by administrators of the New York City BOE. Nonetheless I can, and obviously do, speak out about what I see and hear in my children's factories...oops, schools. Alot aint right, folks. Now that my children are all out of college, working and, I hope and pray out of the danger of retaliation by the DOE, I am still. and will, remain unafraid to speak out about the wrongdoing within their corrupt hallways.

Anyway, in 2006 Joel Klein decided to place the Ross Global Academy Charter School inside of NEST+M, one of my daughters' schools. The NYC BOE insisted that our capacity was half empty - by changing the capacity number on a daily basis. As I wrote in a previous article, Garth Harries, the recently departed manager of the BOE plant capacity and assessment, came to NEST+m in April of 2006 with several other people to measure rooms that "they" liked at NEST for the Ross classrooms. Parents were outraged. (We sued twice, first the City of New York, Joel Klein, et al., and then the Board of Regents of the State University of New York; we won our lawsuits).

The next day I called Ms. Mashea Ashton, Garth's boss at Tweed, to ask if I could read the Ross Global Charter application, a public document. I also filed a freedom of information request with the New York State Ed Dept. Ms. AShton said, "Sure, when do you want to come to Tweed to review it?"

That is how I ended up at Tweed on April 18, 2006 at 2PM. I was given a desk on the third floor on which were four huge volumes, all 1900+ pages of the application for a charter filed with the Regents to set up a charter school in New York City. The location was never given, but the charter school would be in the NYU "education park" on the lower east side of Manhattan (there was a map).

From 2PM until about 5PM I read the documents and wrote notes. Suddenly at 5PM Ms. Ashton came over to me and said, "I'm so sorry, but someone at legal just called me and told me that I should review your notes because we may have left some information in the documents that you should not have seen."

I thought, wow, this is interesting! I knew that "they" had no right whatsoever under any law to seize my personal notes, but as a reporter, I thought there might be a great story if I let Ms. Ashton take my property. I wanted to know what she might do with it.

I reluctantly said something like, "Gee, I'm not sure that you have any right to look at my notes, but I guess you could look at them". Ms. Ashton took my pad and, a few feet away, started reading my notes. Then, she ripped two pages out of my pad. I said, "What are you doing". Ms. Ashton said, "Well, you have some private information here that we forgot to take out of the documents you are reviewing, and I have to take these pages. But I'll xerox them for you and give you the left half ".

These pages had the names and addresses of the Board of Trustees of the Ross Global Charter Academy. My protests fell on deaf ears, and she answered my question "Who told you to do this" by saying "someone in the legal department".

She then left me to read/copy/write notes on the entire documents all over again, until 6PM when I left.

I went home and wrote Joel Klein's attorney Michael Best, and asked him for my notes back.

I started a log of the emails:

April 28, 2006

Now, the NYC BOE is informing me that I will get my notes back, but in an altered form. I do not believe that I wrote down any personal addresses.

From: Best Michael
Sent: Friday, April 28, 2006 6:18 PM
To: 'Solarmedia@aol.com'
Subject: Your request regarding notes taken about the Ross Charter School Application

Ms. Combier,

I have considered the situation regarding the notes you took while examining paperwork related to the Ross Global Charter School ("Ross').

There are two pages of notes at issue. My understanding is that Ms. Mashea Ashton of the DOE asked to see your notes and realized that you had copied down the addresses of various people associated with Ross. Realizing belatedly that information pertaining to the home addresses of these individuals should not have been provided to any member of the public because of the need to protect the individuals' personal privacy, Ms. Ashton asked to see your notes. She then made a redacted copy of your notes, i.e., a photocopy of your notes with the addresses redacted, and she gave you that redacted copy of your notes. Thus, although Ms. Ashton kept the original, unredacted version of your notes, you were not actually deprived of your notes or of any pertinent information concerning Ross.

Upon reviewing the matter, however, I have determined that, with one exception, the redacted addresses are not personal addresses. Instead, they are business addresses, which should not have been redacted. It appears that Ms. Ashton redacted the business addresses in an excess of caution to preserve the privacy rights of the individuals associated with Ross, but at this time, we will provide those business addresses to you. There is, however, one address that appears to be a home address, and it would be inappropriate to release that home address publicly.

Therefore, we will return the original version of your notes to you, but we will redact the one home address before we do so.

Please contact me via email on Monday to let me know the best way to return the notes, with the one item redacted as mentioned, to you. Thank you.

Michael Best

From: Best Michael [mailto:MBest2@nycboe.net]
Sent: Friday, April 28, 2006 6:22 PM
To: Betsy
Subject: FW: Your request regarding notes taken about the Ross Charter School Application

Please see below. It appears that the attempt to send this email to your other email address was not successful.

>>> 4/20/2006 9:40:56 AM >>>

Dear Mr. Freeman,

I request an expedited verbal opinion on the following Freedom of Information request and incident. Please call me at 212-794-8902 as soon as possible.

On Friday, April 14, 2006 I made an appointment with Ms. Mashea Ashton of the NYC DOE Office of New Schools, to go over the charter application of the Ross Global Academy Charter School at Tweed at 2 o'clock on April 18.

On Tuesday, April 18, 2006 at 2PM I arrived at Tweed, Ms. Ashton met me downstairs, and subsequently took me upstairs to her office. She gave me a table in the corner, upon which she placed the 1919 pages she had received back from NYSED of the Ross charter application, and told me that all charter applications were that long and to please let me know if there was anything that I needed, and she went to her desk.

I looked over the documents and jotted down on my pad the names of the Board of Trustees as well as relevant sections of the Charter School Act of 1998 and other information on the 501 (C) 3 (Ross Institute and Ross Global Academy Charter School).

At approximately 5PM Ms. Ashton came over to me and told me that she had to take all my notes and look at them. I asked why. She told me that there was private information in the documents and she had to make sure I had not copied any information down. as a long-time admirer of your work and the FOIL law, I have some knowledge of what is private information and what is not, and I believed that I had no private information in my notes, so I gave her my pad. I did not want to dispute her assessment at the time, and she told me that I had to give all my notes to her. She removed two pages: the list of the Board of Trustees' names with their affiliations (no addresses).

She told me that she had "checked with legal" and had been told that I could not have my notes back, because the Board of Trustees' affiliations were private information. Again, my notes had no addresses or telephone numbers.

Ms. Ashton xeroxed my notes and gave me the left half with the names of the Trustees. She then left me to look at all the documents for another 1/2 hour, and I had to leave at 6PM, which I did.

Was she correct in taking my notes?

Thank you for your reply as soon as possible.

Respectfully,
Betsy Combier

On Monday, April 24, 2006, I tried calling Ms Holtzman to ask if I could pick up my notes that day. Ms. Holtzman returned my call on Tuesday, April 25, and told me that “Mike” [Best] would get back to me. I still have not heard from Mr. Best, nor do I have my notes.

I consider this a very serious violation of my 4th and 14th Amendment rights, and I demand my personal property back immediately. On Monday morning May 1, 2006, at 9:30AM, I will expect to have my two pages returned to me. Please let me know where I can pick them up. My telephone number is 212-794-8902.

Betsy Combier
Editor,Parentadvocates.org

We wondered why Mr. Best did not want us to have the home address of Robert Torres, the only home address on the two pages of notes. Perhaps he did not want us to contact him, although he is listed on zabasearch.com. We called him, and he told us that “…if the NEST parents don’t stop their protests and think that we will not protect our children, they are very wrong;” and, “if you do not stop the NEST parents your principal will be sorry”.

Robert Durkin, well-known in New York City for changing the grades of 19 students at Washington Irving High School when he was Principal, and for being fired, told us that he “would make NEST+M a better school, just like the Julia Richman High School Complex”. We know the Julia Richman Educational Complex very well, and comparing NEST, a very small school, with a complex of 6 schools is like comparing apples to spinach.

Kunle Abodunde has resigned from the Board, we were told, and has presumably left the country, as zabasearch.com has no record of him, even though he supposedly started The Posse Group (he is not on their website, but we called a few colleges).

Richard Halperin, Principal of Quellos LLP, had no comment about Ross/NEST, and we located more than 80 pages on his involvement with the Clinton Administration and the Monica Lewinsky coverup, but no data on his knowledge of elementary school teaching/curricula/education. (From Betsy Combier: Mr. Halperin died suddenly on June 19, 2008, and here is his obituary tribute from the New York Times, June 21, 2008:
" HALPERIN--Richard E., sadly on June 19, 2008 at age 53. Born December 7, 1954 in New York, NY to Alvin and Anne Halperin. Richard was the former Chief Operating Officer of the Quellos Group. Prior to joining Quellos, Mr. Halperin was Executive Vice President and Special Counsel to the Chairman of MacAndrews & Forbes Holdings, Inc. He also served as President of the Revlon Foundation, The MacAndrew & Forbes Foundation, and the Perelman Family Foundation. Previous to joining MacAndrews, Richard was Administrative Assistant to the Attorney General of New York State. He served on the Board of Trustees of the Rye Country Day School, The Ross Global Academy Charter School and The Citizens Budget Commission. He was also an Executive Advisory Board Member of the Boston University College of Communication and was a member of the Zoning Board of the Town of Harrison, New York. He held a B.S. cum laude in Communications from Boston University and a J.D. from the New England School of Law. Survived by his beloved wife Lucy, cherished children Ross, Robert, Kenneth and Steven, and adoring sister Marsha (Martin) Epstein. Funeral service Sunday 12 noon at The Jewish Community Center of Harrison. Interment to follow at Sharon Gardens Cemetery. For information, Zion Memorial Chapel 914-381-1809."

We have concluded from all of our telephone calls to Ms. Jennifer Chidsey Pizzo (no comment), Martin Payson (no comment), and Dr. Mark English (no comment) that there is no strategy currently in place to establish a positive partnership between Ross Global staff, parents and children, and NEST+m. This foretells doom for all.

We have information on Ms. Ross’ legal troubles with her taxes. It seems that in the rush for tax exempt properties, NYU and the NYC DOE have forgotten that the environment for the Ross kids has been poisoned irrevocably. The only solution is to change the location of the Ross Global Academy Charter before children’s lives are changed and the promises you have made to your new students are shown to be false.

Second reason. We will publicize the new study by City Project, “Fatal Subtraction”. This shocking report may convince New Yorkers that New York University has ulterior motives for placing the Ross Global Charter in NEST+m that have nothing to do with putting “children first”. We have received comments from parents not connected with the NEST+M community that the Ross Global Academy Charter may be a good idea, but one that cannot succeed with NYU behind it, despite the massive power and wealth connected with this University. You will not have the best wishes of New York City residents behind you in your desire to be in partnership with NYU as small, excellent schools such as NEST+m are destroyed and minority parents are lied to.

If you have plans for franchising the “Ross Model” – and we are still unclear exactly what that is – then we suggest (audaciously, we admit), that you separate your charter school from NYU as quickly as possible, despite the ridicule of the NY State Regents to this suggestion, especially Regent Meryl Tisch, who had so much to do with the approval of your charter application, and works with Mr. Richard Halperin at The Citizen’s Budget Commission. At minimum, you should not continue to jeopardize the success of NEST+M to suit your own needs. It looks to us that you will not succeed in realizing your goals within the NEST building. We know that the general public no longer trusts that Mayor Bloomberg and Chancellor Klein are doing a good job in the area of public school education reform. This sentiment will prevail after Mayor Bloomberg’s term of office is over and the media in NYC hopefully will be more open to covering all views and honestly reporting all data. Public opinion seems to be turning against your benefactors right now, and will only continue to grow, and harm your potential for success.

Third reason. The NYC DOE has not been in favor of Gifted and Talented education for many years, at least since the 1980’s. However, this opinion is not shared by the public especially in New York City, where right now there is immense pressure from parents to encourage highly gifted students. There is also the matter of what seems to be Joel Klein’s dislike of Celenia Chevere. His attacks against NEST+m have always been personal and this will become his legacy: using his personal feelings as weapons. We suggest that no foundation built upon this kind of attack will succeed.

Our summary above will be elaborately explained on our website, but we hope that you will re-consider the disastrous destruction of NEST+m. Your Charter school would thrive at another location, and you should pursue establishing an independent school, at a new site. You should leave NEST+M to the parents, staff and administration who have built and maintained it. The Ross Global Academy Charter School will not succeed at 111 Columbia Street, because the general public and those who care about the children most affected by this terrible attack on our nation’s public school system by the rich and powerful wont let you.

Thank you for your consideration of our issues, and we look forward to promoting your charter and your “Ross model” at a location other than 111 Columbia Street.

P. Wilder
Ajamo Kamau
Betsy Combier
betsy@parentadvocates.org

From: Robert Freeman [mailto:RFreeman@dos.state.ny.us] (pictured at right)
Sent: Thursday, April 20, 2006 11:15 AM
To: Solarmedia@aol.com

Subject: Re: Fwd: FOIL Request From The E-Accountability Foundation

I have received your letter concerning the ability of the New York City Department of Education to review and/or confiscate personal notes that you prepared while reviewing records made available to you pursuant to the Freedom of Information Law.

In short, government agencies are subject to the Freedom of Information Law; private individuals are not government agencies and are not required to comply with that law. Further, from my perspective, your notes are your personal property, and the Department would have no right either to review or take possession of your property.

I hope that I have been of assistance.

Robert J. Freeman
Executive Director
NYS Committee on Open Government
41 State Street
Albany, NY 12231
(518) 474-2518 - Phone
(518) 474-1927 - Fax
Website - www.dos.state.ny.us/coog/coogwww.html 

From: Betsy [mailto:betsy@parentadvocates.org]
Sent: Saturday, April 29, 2006 1:59 AM
To: 'Best Michael'
Cc: 'Betsy'
Subject: RE: Your request regarding notes taken about the Ross Charter School Application

Dear Mr. Best,

I will pick up my notes at approximately 10 AM May 1 at Tweed. I suggest that you read Mr. Freeman’s opinion, which is also mine, that my notes are not subject to the Freedom of Information Act/Law, and any change in my notes by your agency or officers is actionable.

Please have my notes in the original form at the front desk on Monday morning, or have the law that covers your statement that you may redact my notes without my permission.
Betsy Combier

From: Betsy [mailto:betsy@parentadvocates.org]
Sent: Saturday, April 29, 2006 2:10 AM
To: 'Robert Freeman'; 'Best Michael'; jklein@nycboe.net;
Cc: 'Betsy'
Subject: FW: Your request regarding notes taken about the Ross Charter School Application

Dear Mr. Freeman,

I request an expedited opinion on the matter outlined below.

On April 18, 2006 at approximately 5PM, , while sitting at a desk at Tweed, Ms. Mashea Ashton, the employee of the NYC DOE with whom I spoke about viewing the Ross Charter Application under FOIL, and the person who gave me the time 2-6PM to read the charter and gave me the 1010 pages to read, told me that I had to give her my notes so she could read them. I unwillingly gave my notes to her, and she told me that she had to seize two pages.

Now, the NYC BOE is informing me that I will get my notes back, but in an altered form. I do not believe that I wrote down any personal addresses.

Please reply as soon as possible, by telephone if necessary: 212-794-8902, or by return email, about the NYC BOE giving me back my personal notes, redacted by them.

Thank you!!

Betsy Combier
betsy@parentadvocates.org

From: Best Michael [mailto:MBest2@nycboe.net]
Sent: Monday, May 01, 2006 8:14 AM
To: Betsy
Subject: RE: Your request regarding notes taken about the Ross Charter School Application

Ms. Combier,

I am afraid that 10 AM this morning will not work for me. Please propose another time tomorrow. Thank you.

Michael Best

From: Betsy [mailto:betsy@parentadvocates.org]
Sent: Monday, May 01, 2006 8:36 AM
To: 'Best Michael'
Cc: 'Betsy'
Subject: RE: Your request regarding notes taken about the Ross Charter School Application

Dear Mr. Best,

I hope that 11AM tomorrow morning will be convenient for you.

Additionally, I request that you give me, in writing, the name of the person in your office who told Ms. Ashton to seize my notes. If you do not give me a name, I will assume that you told Ms. Ashton.

Thank you,

Betsy Combier

From: Best Michael [mailto:MBest2@nycboe.net]
Sent: Tuesday, May 02, 2006 10:46 AM
To: Betsy
Subject: RE: Your request regarding notes taken about the Ross Charter School Application

Ms. Combier,

This will confirm our conversation of a few minutes ago. I explained to you that I am obliged to protect the privacy concern of the person whose personal address you wrote on your notes. I told you that I was trying to reach that person on the telephone but had been unable to do so as yet. I told you that I wanted to find out if this person would consent to release of his personal address. And I asked for a bit more time to try to get a hold of him before you picked up your original notes, because if he consented, I would not have to redact his address on your original notes.

You told me that you would get the notes in 20 minutes, and you said "I should do what I have to do." I told you that you were putting me in a position where I have no choice but to redact your notes in order to protect this individual's privacy interests, and you reiterated that I should do what I have to do, but you were coming to get your notes.

Michael Best

On May 2, 2006 I went to Tweed's front desk and asked for an envelope with my name on it. There was none. I asked the security to buzz Mr. Best. Michael Best came downstairs, and asked me to sit with him for a few minutes. I said, "Sure!" Mr. Best tried to convince me that he must redact my personal notes, and he encouraged me to agree with him. I finally said, "Mr. Best, you are the Attorney here, I am not. So why dont you go to your office and get my two pages from my pad, and bring them to me? If you feel that you must redact my notes, then you do what you feel you must do as an attorney."

He went upstairs and brought me my two pages, unredacted.

I thanked him, and as I turned around to leave, he said, "I enjoyed speaking with you very much."

Robert Freeman, Director of the Committee on Open Government, and His Fight Against Government Secrecy



Robert Freeman

Capitol Case: Robert Freeman’s Enduring Fight Against Government Secrecy

LINK

ProPublica, Aug. 7, 2015, 8 a.m.

         Robert Freeman has been helping people extract public information from New York state agencies for four decades. He is the executive director of the New York Committee on Open Government, a division of the New York Department of State that advises the public on the Freedom of Information Law — the state statute authorizing access to public records.

While Freeman gives Gov. Andrew Cuomo credit for making a substantial amount of state data available online, he says the administration has been slower and more difficult than any previous administration in responding to formal Freedom of Information requests.

Several ProPublica reporters have recently experienced delays and resistance from New York state agencies in responding to such requests. Joaquin Sapien has spent the last several weeks reporting on violent crimes perpetrated by youngsters living in group homes throughout New York City. Last week, he received a response to a request for inspections of the homes and enforcement actions made against their operators from the Office of Child and Family Services. The response came two weeks past the 20-day-deadline and said the agency needed an additional 75 business days to fulfill the request.

Meanwhile, ProPublica reporter Michael Grabell has fought a three-year legal battle with the New York Police Department trying to obtain records on the department’s use of X-ray surveillance machines.

Freeman agreed to participate in a Q&A with Sapien. In it, Freeman, 68, draws on his experience working under seven different governors to speak to such delays in the release of public information and their underlying causes.

The transcript of the Q&A has been edited for clarity and space. (Listen to the full interview below or on SoundCloud.)

Sapien: What is the Committee on Open Government? How did it start? And how’d you get involved?

Freeman: The committee is a creation of the state’s Freedom of Information Law, which was initially enacted in 1974. And it came about, in fact, as the result of commentary by members of the news media. The news media pushed for the creation of some sort of an oversight body.

That led to an amendment to the original enactment to create what was then called the Committee of Public Access to Records. Our function really is quite simple. We give advice and guidance, either verbally or in writing, to anybody who has a question about public access to government information. The staff is tiny; it’s myself and one other. I describe this office as the smallest state agency that actually does anything and leave the rest to people’s imagination.

Sapien: Governor Cuomo, when he was running in 2010, pledged to usher in a new era of transparency, saying, “We must use technology to bring more sunlight to the operation of government.” Has he lived up to that promise?

Robert: The truth is, in relation to technology, in many ways, the answer is yes.

The governor has initiated an executive order which deals with open data, making data available online that is usable in ways that most of us can’t imagine. Certainly, there’s much more that is available online than in the past.

But then again, when it comes to the typical freedom of information request, state government has engaged in too many instances, in my opinion, in unnecessary and unwarranted and unreasonable delays.

Sapien: Has that been happening more now than before?

Freeman: I think it has but it has for a variety of reasons. Number one, Freedom of Information Law, I used the term FOIL before, it is part of the language in New York.

Our website receives literally millions of hits every year. People know about it and they use the law. That, I think, represents something of a cultural difference between New York and other places in this country, and in the world for that matter.

We fight City Hall. We make lots of requests. That has resulted, in some instances, in delays. In other situations, my belief is that delays have occurred due to, let’s say, a failure on the part of many to have the ability to act independently.

Sapien: What’s at the root of that failure? Is that a cultural issue within this administration, that’s particular to this administration?

Freeman: Every administration has wanted to exercise a degree of control. Some more than others. In my view, this administration seeks to do so more than its predecessors.

Sapien: Give us some examples of that.

Freeman: There are any number of situations in which agencies receive requests and are told that they really should not respond until they have an OK from the executive chamber. If you deal with press people at state agencies, you know that it’s difficult to get quick answers from them.

Once upon a time, and I’ve told this many times, years ago, I had a friend who worked here in Albany at the Capitol. I said to him, “There’s a significant story on every floor of every state agency building. You just have to get it.”

Back in the olden days, you could just walk into a state agency and talk to people. You can’t do that anymore. Generally speaking, the average state employee cannot talk to the press.

Sapien: Is it true, then, that information is more tightly controlled under the Cuomo administration than it has been under previous governors?

Freeman: I think that that is true.

Sapien: I want to bring up a specific example of Mr. Cuomo’s approach toward public records with regard to preserving and disclosing emails.

Apparently, he has adopted a controversial tactic of allowing or maybe even encouraging staffers to conduct official business on private email accounts. My colleague Justin Elliott has written about it.

Freeman: As I mentioned earlier, our law was enacted in its initial form in 1974. It was completely revised in 1978. When we were drafting the amendments in ’77, we tried to correct what we perceived to be deficiencies in the federal act. One of the deficiencies that exists to this day is that the federal Freedom of Information Act does not define what a federal agency record is.

The truth is [New York] got lucky. We got lucky. We drafted a definition of the term “record.” At the time, think about the late ’70s, high tech was an electric typewriter. We used carbon paper to make copies. There was no such thing as the (commercial) Internet or email. But since ’78, our law has dealt with all agency records. And the term record has been defined expansively to mean any information in any physical form whatsoever kept, held, filed, produced, or reproduced by, with, or for a government agency.

If I go home and I sit down at my home computer and I use my personal email address and I communicate with you in my capacity as an employee of the Department of State, that is a Department of State record. It falls within the coverage of the Freedom of Information Law and, like any other record, its content would determine what’s public and what’s not.

The question came up years ago, “Are those communications covered by FOIL?” The answer, based upon the definition of the term record, is clearly yes.

Sapien: Do you get the sense that public officials are doing this on purpose, that using a private email account will make it more difficult for people to get their hands on those records in the future?

Freeman: Sometimes, that may be so. The truth is, we heard about that in the Bloomberg administration. We’ve heard about it many times since. Whether that is done purposefully, or with knowledge of FOIL or not, I don’t know. I don’t know and I think it will vary from one situation to the next.

Sapien: Taking it back down to a local level, Mayor Bill de Blasio of New York also ran on a campaign of openness and transparency. How does he stand on answering open records requests? What are you hearing about that?

Freeman: I’ve been somewhat disappointed. You might know that when Mr. de Blasio was public advocate, he engaged in what amounted to a freedom of information audit of New York City agencies. He put out a report which consisted, by and large, of a report card where city agencies were graded relative to their compliance or absence of compliance with FOIL.

Based upon that interest, my hope was that, with the new mayor, the implementation of FOIL would improve in New York City. I don’t see that that has happened.

Sapien: What’s the evidence that it hasn’t happened?

Freeman: Again, there are any number of situations in which a request will be made and the agency engages in what I would consider to be unreasonable delays. There have been other situations in which I believe that they have engaged in unreasonable denials of access. For better or for worse, it is not uncommon.

Sapien: The NYPD has long frustrated the press and advocates with its obstinance on public records. I’ll give you an example from our very own reporter, Michael Grabell.

In January of 2012, Michael was writing about xray machines used by law enforcement. He learned that the New York Police Department was using them, and that the machines have raised serious civil rights and privacy concerns, and radiation from the machines has been linked to health problems.

He submitted a FOIL request. He asked for some basics: How many xran vans the police had, the after action reports, documents regarding policy and procedure, things like that.

For three years, Grabell and the department went back and forth with appeals and denials. Finally, in December 2014, a New York County judge ordered the police department to produce some of what he’d been asking for.

Now, the police have appealed to a higher court. The soonest a ruling could come would be in January of 2016. So that’s one request, four years of legal drama, and still no records. How common is that?

Freeman: Several points to be made. In terms of the delay, I mentioned earlier that the Committee on Open Government submits a report to the governor and the legislature. We offer legislative proposals. One of them is soon to go before the governor. It’s passed both houses of the legislature. It would deal with the issue of delay.

Any time somebody sues, the loser has 30 days to appeal. Thirty days to file a notice of appeal. Thereafter, it has a certain period of time within which it must perfect the appeal by filing a brief. It can be, in some cases, as much as nine months.

What you described happens far too frequently. We described the issue as access delayed is the equivalent of access denied. This bill would say, yep, the agency still has 30 days to appeal, but from there it has 60 days, not nine months, to perfect the appeal. If they don’t do that, the appeal would be deemed abandoned. That’s point one. We’re working on that. My hope is that that will become law within a very few weeks.

Sapien: So take us behind the scenes a little bit. I think reporters often wonder what these FOIL officers are doing when it takes months or years to respond to a request, often with a blanket denial.

Is this deliberate? Is it laziness? Is it a cultural problem? What’s going on in these state agencies when our requests go unanswered for so long?

Freeman: I think it’s a combination of all of those things. First of all, I do know, and I’m going to defend the agencies, we are as thin as we have ever been. The truth is that there are many, many agencies that simply can’t do as much work as they used to do not so long ago.

It’s an aging workforce. I’m an old guy. The truth is that people leave. They retire. They die. In too many situations, you don’t have people at the agency who have the ability to pick up the ball and carry out the duties, the functions in the same way.

Sometimes, yes, I think it is institutional resistance. Sometimes, it may be sloth. We just don’t want to go look for it. We don’t want to go through it. We don’t want to do what the Court of Appeals, the state’s highest court, has told us. And in fact, you used the phrase that the court used. The court rankled when the New York City Police Department engaged in what it called, “The blanket denial of access.”

FOIL says that all government agency records are available except those records or portions of records that fall within a series of exceptions. There are any number of situations in which some elements of a record, even on a single page, will be public. Others might justifiably be withheld. But it is unusual that the entirety of the page, of the document, will justifiably be withheld.

FOIL says, at least the way I see it, very basically that all records are available except those records or portions of records that fall within a series of exceptions. Those exceptions are based upon common sense.

All the law really should ever say is that everything is available except to the extent that disclosure would hurt – either somebody in terms of an invasion of privacy, the government in terms of its ability to do its job well on behalf of the public or, on occasion, a private company visàvis its competition.

The real question in so many instances is, “What would happen if we had to disclose?” And unless the answer in the gut is, “Ouch, this would really hurt,” disclosure ordinarily should be the outcome. Obviously, that’s an oversimplification, but that’s what the law is about. In fact, the law specifies that the government has to meet the burden of defending secrecy.

Sapien: You’ve obviously been outspoken and in favor of disclosure for a long time now. You’ve helped a lot of people get records, many of whom in our own office.

Freeman: It’s hard to believe that they pay me to do this, actually. They don’t pay me very much.

Sapien: That’s what I’m getting to. Being a state employee, have you been the subject of criticism or backlash from your colleagues in state government?

Freeman: Not as far as I know. Behind closed doors, probably, but I think that there’s a recognition that to function at all this office has to be independent.

It’s interesting that you raise the question, because for all intents and purposes, my first real boss was Mario Cuomo, who above all, was a lawyer. He arrived as Secretary of State, his first government job, in 1975. I was pretty much a kid. I picked up the phone because it rang and answered people’s correspondence because it landed on my desk and offered what I believed to be the right answer under the law, regardless of the source of the question.

Things have not changed since then. This office has always been independent.

Sapien: So what’s the big picture lesson for folks who want to obtain public information? How do we heighten our chances of getting the most and the best information possible through our FOIL requests?

Robert: Number one, use our website. It’s easy to find. We’re the only Committee on Open Government in the world. You simply Google “COOG” and you’ll get there. We have an immense amount of material that’s available online. You scroll to “Freedom of Information Law.” There will be a box that says, “Advisory Opinions.”

We’ve written 25,000 over the course of years. They’re indexed by key phrase. Use them. You find an opinion that supports your point of view and you make a request. Attach it to the request so that you can show that you’ve done your homework, that it’s not you alone who wants it, that other people have wanted the same information in the past, that you’re referring to the language of the law, and usually judicial precedent to back you up.

The other thing that I think is absolutely critical, and I’ve said this a thousand times, I refer often to the statement offered by Judge Louis Brandeis 102 years ago. “Sunlight is the best disinfectant.” That’s what you do. You shed light on situations.

Often, when you do, when you tell the world, either good things begin to happen or bad things stop happening. I think that the effort to continue to do that has to go on forever.

Help us investigate: If you have experience with or information about transparency in government, email joaquin.sapien@propublica.org.

Related stories: For more coverage, read ProPublica’s previous reporting on the Cuomo administration’s use of private email to conduct government business and our legal fight for New York Police Department records on X-ray surveillance machines.

Once Again, Betsy Combier Questions the Delay in Getting Information About the Feb. 24, 2015 Plenary Meeting About 3020-a Prosecution by the DOE

Betsy in her office at the UFT, 16th floor, 52 Broadway circa 2009

 

As many of you know, I filed a Freedom of Information request to the DOE FOIL office, headed by Joe Baranello, for information about what has become a "secret policy meeting" for 3020-a arbitration:.
Betsy Combier Files a Freedom of Information Request to Obtain the Information Given Out At The NYC DOE February 24, 2015 Secret Meeting on 3020-a Hearings

Joe Baranello and His New Facebook Comment on the City, as Well as His Refusal to Answer Betsy Combier's FOIL Request #11,129

Another Request Sent By Betsy Combier Concerning F11,129 For Records of the Mandatory 3020-a Meeting Held on February 24, 2015

 

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

http://nycrubberroomreporter.blogspot.com/2015/04/betsy-combier-asks-foil-officer-joe.html

 

Joe Baranello Says Pay or You Dont Get To Play (F11,129)

 

You are probably wondering why I am posting all of my requests for information relating to the February 24, 2015 plenary meeting held at Tweed, NYC Department of Education headquarters for all NYSUT and DOE Attorneys as well as all the NYC 3020-a arbitrators.

After investigating the procedures used at 3020-a for the past 12 years, and now working as a paralegal/advocate for Respondents charged with 3020-a, I need to know what the current policies are for 3020-a according to the "Star Chamber" folk.

One of the private Attorneys who works with me on 3020-a cases for almost 5 years asked the DOE General Counsel, Courtenaye Jackson-Chase, if we could attend the February meeting, and she told us that no, there was no space, and there would be another meeting for private attorneys at another time. That was the last we heard. Can we, the general public accept the fact that there is too much secrecy surrounding 3020-a and getting good people charged with frivolous charges?

 The fact that the public has been shut out of how DOE employees brought to 3020-a are to be prosecuted is alarming.

On May 8, 2015 I received an answer from First General Counsel Judy Nathan to my appeal of the denial of access to the information about the plenary meeting and about the fees. See below for the email reply from Ms. Nathan as well as my response to her, sent May 9, 2015:

 

May 9, 2015

Dear Ms. Nathan,

 

Thank you for the timely reply.

Ms. Nathan, your title is "First Deputy Counsel," and  you are listed underneath Charity Guerra, whose title is "Chief Deputy Counsel."

Please see the "Contacts" listing below.

I copied it from the Office of the General Counsel page on the website of the NYC DOE.

http://schools.nyc.gov/Offices/GeneralCounsel/default.htm
Contacts 

Courtenaye Jackson-Chase, General Counsel

Charity Guerra, Chief Deputy
CounselCGuerra7@schools.nyc.gov

Judy Nathan, First Deputy
CounselJNathan@schools.nyc.gov

(Please note that General Counsel Courtenaye Jackson-Chase's email address was omitted from the "Contacts" listing on the webpage, so I will put it here:

cjackson-chase@schools.nyc.gov)
I am concerned about your attached May 8, 2015 denial of my appeal, for the following reasons:

General Counsel Courtenaye Jackson-Chase and Chief Deputy Counsel Charity Guerra know very well that I have the facts on Ms. Guerra's jumping from the CSA to the DOE while defending a principal against the DOE in front of Arbitrator Joel Douglas.  I believe that your denial of my appeal is directly related to my knowledge about that case.  (Respondent J.K.)

And, I am currently suing Joseph A. Baranello, Esq., for FOIL violations.  I am in the New York State Supreme Court and my complaint concerns unreasonable delays by Mr. Baranello and his office when I requested the contract of former Chancellor Dennis Walcott.  I received nothing for almost two years. 

 

 

You state in your letter that my appeal is denied.

 

What part of my appeal is denied?  The part asking for a specific fee for records, which you now say you will give me a "cost breakdown" of (with respect to hard copies and/or recordings) "prior to the duplication and preparation"?  I think I won that point.

 

 

Or are you denying that the highest-ranking attorney in the Office of the General Counsel, Courtenaye Jackson-Chase, Esq., at your location, held the meeting that I am requesting documents for, and that all the documents are physically located in the Office of the General Counsel?

I think we are both aware that General Counsel Courtenaye Jackson-Chase (Chief Deputy Counsel Charity Guerra's boss, and, therefore, yours as well) was the person who headlined the meeting on February 24, 2015, and obviously has all the documents I am requesting.  I noticed that although I appealed to Ms. Jackson-Chase (who is also Joseph A. Baranello, Esq.'s boss, as well as being the same person who hired Charity Guerra, Esq., while she was defending Respondent J.K. against the DOE for CSA), she is not copied on the letter of "denial" of my appeal.  Why is that?

I am also quite concerned about your statements below:
 

"However, at this time the exact volume of responsive hard copy records and/or recordings remains unclear.  Once these records are located and reviewed, I direct the CRAO to provide a cost breakdown to you based on record type prior to the duplication and preparation of these records."

On March 17, 2015, I filed a freedom of information request for the documents, emails, videos, and all other relevant information concerning the February 24, 2015 meeting held in your office by Courtenaye Jackson-Chase and Adam Ross, UFT Attorney. The meeting is not for DOE personnel only, but the many different groups involved in NYC 3020-a arbitration. Two months later, you are claiming that you have no idea how many documents and/or recordings exist, and have to locate them. Did you ask Ms. Jackson-Chase?

Can you please spend five minutes on getting the documents and recordings I request from General Counsel Courtenaye Jackson-Chase, and let me know within the next five business days?  If not, why not?

I will then pay $.25/page and the cost of the CD.

Or, in the alternative, I suggest that the FOIL Unit use a file-sharing service such as www.dropbox.com to eliminate the need for a CD.

Here is some information about the service:

http://en.wikipedia.org/wiki/Dropbox_%28service%29

 

Please clarify all of this for me, as I remain confused, and see only deliberate delay once again.

 

Thank you,

Betsy Combier

betsy.combier@gmail.com
ADVOCATZ    
www.parentadvocates.org    
NYC Rubber Room Reporter
www.nycrubberroomreporter.blogspot.com

cc:  Courtenaye Jackson-Chase, Esq.
      Joseph A. Baranello, Esq.
       Robert J. Freeman, Esq.