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

NYC DOE Joe Baranello

TO: Courtenaye Jackson-Chase, Esq.

       General Counsel

        FOIL Appeals Officer

 

       Robert Freeman

       Committee on Open Government

Dear Ms. Jackson-Chase,

Today, I received, once again, an email from your Records Access Officer Joseph Baranello which delays the release of records, digitally stored data, and documents pertinent to your meeting held at your office on February 24, 2015, at 4 PM with NYSUT/DOE attorneys and arbitrators currently working on §3020-a cases in New York City:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Pursuant to the Freedom of Information Law, I am appealing this constructive denial of access by Records Access Officer Joseph A. Baranello, Esq. 

 

The advisory opinion by Robert J. Freeman which was cited by Mr. Baranello, FOIL-AO-19021, is here:

FOIL-AO-19021

From:   Freeman, Robert (DOS)
Sent:    Wednesday, May 15, 2013 3:00 PM
To:
Cc:       'Maureen.Murphy@suny.edu'
Subject:           RE: FOIL Request Control No. 1315

Dear :

            I have received your note - - the response to your request by SUNY regarding fees is not, in my view, entirely clear. 

            Section 87(1)(c) of FOIL authorizes an agency to establish a fee based on the actual cost of reproducing records that are maintained electronically.  If it takes 2 hours or more to prepare the records sought, an agency may charge a fee based on the hourly salary of the lowest paid employee able to do so, plus the cost of the storage media.  If it takes less than two hours, the actual cost would involve only the storage media.

            The issue with respect to the response involves the term “prepare.”   We agree that the effort needed to extract records or data involves the preparation of records.  If redaction is accomplished electronically, that, too would likely be found by a court to reflect the preparation of a record.  However, if, for example, records are extracted and exist in paper form, and if redactions are made manually, the process of redacting would not, in our opinion, constitute the preparation of records; the records would already have been prepared, and the agency would redact or delete portions of those records already prepared in order to disclose the remainder.  No fee may be charged in that latter circumstance.

I hope that I have been of assistance.

FOIL-AO-f19021
19021
 

For comparison purposes, I am in possession of similar FOIL requests made by me that the New York State Education Department, when responding to a request for records which may require a fee, writes:

 

"SED charges the statutorily permitted fee of $.25 per page for duplication of records requested under FOIL (Public Officers Law §87[1][b][iii]). There is no provision in law or regulation requiring the waiver of this fee. Payment must be made to the NYS Education Department by check or money order. Do not send any payment until you are notified that your request is granted and informed of the charge for your request. If your request is for electronic records and your requested is granted, the records will be provided to you in that format.

 

If your request is granted one of the following will happen:

 

1. If your request can be filled immediately, and the total duplication fee is under $25.00, staff will forward the requested records to you with a statement of what you owe for the duplication fee. Or:

 

2. If the total duplication fee for your request is $25.00 or more (100 pages), you will be advised of the page count and duplication fee owed in advance of duplicating the records. Upon receipt of payment, staff will duplicate and mail the requested records. Or:

 

3. If it will take time to locate and/or duplicate the records you have requested, you will be given a date by which you will be told the page count and duplication fee for your request."

This seems very reasonable to me, and I am seeking an analogous response from you when you determine this appeal of  the delay and constructive denial of access of the records requested in F11,129.

I obviously know that you called this meeting.  It was held in your offices at Tweed.  I know when it occurred and how the people invited were told about the meeting.

I have sent emails to the FOIL Unit and posted my requests on my blog for a specific and detailed invoice for the records relating to F11,129 be given to me before I commit to paying an amount which may or may not cover all the records from this plenary meeting.

Mr. Baranello is stonewalling me.

I am appealing to you, as the organizer of the plenary meeting on February 24, 2015, and as the Records Appeals Officer, to please detail how much I will be charged, and the number of (1) electronic records and (2) documents this fee includes, so that I may choose to pay all or part of the amount you demand.  My advocacy for teachers who are undergoing, or about to undergo, §3020-a hearings is harmed by this delay. 

Please reply within the ten (10) days required by the Freedom of Information Law. Thank you for your

attention and consideration!

 

Betsy Combier

 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

 

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

http://nycrubberroomreporter.blogspot.com/2015/03/betsy-combier-files-freedom-of.html

betsy.combier@gmail.com

ADVOCATZ

parentadvocates.org

NYC Rubber Room Reporter

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

I have a problem with Joseph Baranello, NYC DOE Records Access Officer: he will not give me any records of a secret DOE meeting held on February 24, 2015 at Tweed, 52 Chambers Street, unless I pay someone $29.95/hr. for the storage media and emails connected with this meeting (see my related posts, below). He has never responded to me about how many documents I am supposed to pay for.

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

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

http://nycrubberroomreporter.blogspot.com/2015/03/betsy-combier-files-freedom-of.html

 Tomorrow, the date I was to get the response to F11,129, will be the day that I Appeal to Mr. Baranello's Supervisor Courtenaye Jackson-Chase, if I do not get all the documents I requested.

By the way, take a look at Joe Baranello's Facebook page (he works for the City of New York):

and,

NYC Department of Education Attorney Joseph Baranello Uses Facebook To Comment About The "Douchebags" On The L Train

Meanwhile, I found the article on Federal Agencies hiding records requested under FOIA due to alleged budget constraints, interesting.

IRS Ordered to Make Non-Profit Form 990s Available In a Useful Electronic Format

LINK

Federal agencies cannot avoid their obligation to disclose public records in modern electronic formats merely by invoking budgetary constraints, a judge has ruled in a rare decision exploring the scope of the Electronic Freedom of Information Act (“E-FOIA”).

United States District Judge William H. Orrick of the Northern District of California ordered on January 29, 2015, that the IRS had to produce a set of records to plaintiff Public.Resource.Org in the machine-readable format that the organization specified in its FOIA request. Public.Resource.Org v. IRS, 2015 WL 393736 (N.D. Cal. 2015). The court rejected the IRS’ argument that complying with the request would be unduly burdensome in light of its limited resources, explaining that the “fact that an agency may be under significant financial distress because it is underfunded does not excuse an agency’s duty to comply with the FOIA.”

The litigation concerns Public.Resource’s request for the electronically filed Form 990s for nine tax-exempt charitable organizations. Form 990s are filed by all non-profit organizations and include information about the finances and activities of nonprofit organizations. The IRS uses the information to enforce the rules governing nonprofits’ tax-free status. There is no dispute that Form 990s are public records already subject to disclosure, but the IRS refused to produce them in a machine-readable format, even where the records were originally e-filed with the agency in that manner. Instead, the IRS has only made the documents available in an image format akin to a low-resolution photograph.

Public.Resource, a nonprofit organization dedicated to improving public access to government records and the law, filed suit under E-FOIA, a 1996 amendment to the Freedom of Information Act which requires federal agencies to provide copies of public records “in any form or format requested… if the record is readily reproducible by the agency in that form or format.” 5 U.S.C. § 552(a)(3)(B).

Public.Resource argued that the IRS’ production of the records in a non-machine-readable image format frustrated efforts by watchdog groups, journalists, academics, and other government agencies to monitor the IRS’ performance by making it extremely difficult to process and analyze information from Form 990s. It submitted declarations about the public benefit of accessing Form 990s in machine-readable form from experts including its president, Carl Malamud, who has worked to make the IRS Exempt Organizations database more widely accessible while also scrutinizing the IRS’ breaches of taxpayer privacy; the former United States Deputy Chief Technology Officer; the CEO of Charity Navigator; and journalists with the Center for Investigative Reporting and ProPublica, among others. Public.Resource also invoked President Obama’s Executive Order 13642, Making Open and Machine Readable the New Default for Government Information which sought to “ensure that data are released to the public in ways that make the data easy to find, accessible, and usable.” 78 Fed. Reg. 28111 (2013).

The IRS moved to dismiss the case at an early stage on the grounds that FOIA did not apply at all because the disclosure of Form 990s is governed by a separate provision of the Internal Revenue Code. Judge Orrick rejected this argument and denied the IRS’ motion to dismiss, holding that FOIA was not superseded, and that given the law’s “pro-disclosure purpose,” it cannot be supplanted by another federal statute absent express language to that effect. Public.Resource.Org v. IRS, — F. Supp. 2d —-, 2014 WL 2810499 (N.D. Cal. 2014).

Following this threshold ruling, the IRS argued that it should not have to produce the records in the desired format because it would be too burdensome. While it did not dispute that it receives and maintains e-filed Form 990s in a machine-readable format, the IRS explained that it has an established process for converting the records into image files for processing, which includes redacting certain information which is exempt from public disclosure. The agency argued that it would have to develop new protocols and train new staff to redact sensitive information from Form 990s in machine-readable format. It estimated that such efforts would cost $6,200 to produce the nine Form 990s at issue in the desired format, although virtually all of its evidence focused on the overall costs of producing all Form 990s in a machine-readable form.

In his January 29 Order, Judge Orrick denied the IRS’ motion for summary judgment and granted Public.Resource’s cross-motion. The judge explained that under E-FOIA, to avoid disclosure in a requested format, the “agency’s evidence of burden… must be not only compelling, but also demonstrate that compliance with a request would imposes a significant burden or interference with the agency’s operation.” As a matter of law, the judge held, the IRS’ evidence failed to meet this burden: “That the IRS will have to develop new protocols and train staff to respond to Public.Resource.org’s request does not somehow excuse its need to comply with E–FOIA. If that was a valid excuse, anytime there was a request for production in a format that the agency has not accommodated before, the agency could argue undue burden.”

The court also dismissed the IRS’ argument that its existing production process was sufficient because Public.Resource’s format request was “unique.” As the court explained, the “IRS cannot defeat Public.Resource.org’s request for disclosure of information in the [machine-readable] format by relying on its own prior practices that are inconsistent with the E–FOIA amendments” – particularly because it was likely that the request was unique because the IRS had previously made clear that it would only produce the records in image format.

The court’s ruling was based on the burdens of producing the nine specific Form 990s at issue in the litigation. However, the judge suggested that after incurring these “one-time expenses” to establish the necessary protocols for producing machine-readable records, responding to similar requests in the future would be significantly less costly. The judge ordered the IRS to produce the requested records within 60 days of the order.

Michael Kink Files a Freedom of Information Request For Cuomo Officials and Bigtime Donors

FOI seeks emails between Cuomo aides and donors

BY KEN LOVETT 

NEW YORK DAILY NEWS

Michael Kink

Monday, April 20, 2015, 5:22 AM

Here is an item from my "Albany Insider" column that was cut for space from Monday's editions:

Michael Kink, the executive director of the Strong Economy For All Coalition filed a formal request last week with the Cuomo administration seeking any emails between Cuomo officials and dozens of bigtime donors who are either hedgefund managers or their spouses.

The freedom of information request came Friday on the heels of the latest WikiLeaks of emails showing how top SONY officials sought help with the state's film tax credit program at around the same time they were getting ready to pony up $50,000 to Cuomo's reelection campaign.

Here is the FOI request involving 27 Cuomo administration officials and about three dozen hedgefunders.

Date: Friday, April 17, 2015

Subject: FOIL request

To: records.access@exec.ny.gov

April 17, 2015

Sherry Hwang
FOIL Counsel
Executive Chamber
State Capitol
Albany, NY 12224

Subject: FOIL Request

Dear Ms. Hwang:

Under the New York Freedom of Information Law, N.Y. Pub. Off. Law sec. 84 et seq., I am requesting copies of all email correspondence between any and all members of the Executive Chamber listed below in Column A and any and all individuals listed in Column B.

I am requesting copies of all email correspondence between individuals in Column A and Column B for the period Jan. 1, 2012, up to and including April 17, 2015.

Executive Chamber (Column A)

Governor Andrew Cuomo
Secretary to the Gov. William Mulrow
Director of State Operations Jim Malatras
Executive Deputy Secretary to the Gov. Joseph Percoco
Counselor to the Governor Drew Zambelli
Counsel to the Gov. Linda Lacewell
Special Advisor to the Gov. Susan Del Percio
Deputy Director of State Operations for Policy Andrew Kennedy
Deputy Director of State Operations for Administration Matthew Millea
Deputy Director of State Operation for Programs Joseph Rabito
Director of Policy John Maggiore
Counsel to the Gov Alphonso David
First Deputy Counsel Carey Gabay
Assistant Counsel Ali Chaudhry
Assistant Counsel Maureen Coleman
Assistant Counsel John Czajka
Assistant Counsel Nathaniel Dorfman
Assistant Counsel Nadine Fontaine
Assistant Counsel Niall O'Hegarty
Assistant Counsel Cara Palumbo Schrantz
Assistant Counsel Kendra Rubin
Assistant Counsel Sandi Toll
Communications Melissa DeRosa
Press Secretary John Kelly

* Secretary to the Gov. Larry Schwartz

* Director of State Operations Howard Glaser

* Served in Cuomo’s Executive Chamber during the time covered by this retrospective FOIL

Individuals (Column B)

Gregg Hymowitz
James Dinan
Robert Coburn
James Chanos
William Ackerman
Larry Robbins
Toni Sosnoff
Louis Bacon
James Simons
Elizabeth Miller
Carl Icahn
Philip Falcone
Daniel Nir
Daniel Loeb
Kathe Dyson
Paolo Pellegrini
John Petry
Jill Braufman
Jonathan Sandelman
Marc Lasry
Cathy Lasry
Craig Effron
Marilyn Simons
Martin Sosnoff
David Einhorn
John Dyson
Mario Gambelli
Orin Kramer
Brian Olson
Bruce Kovner
Deborah Hymowitz
Jeffrey Altman
Samuel Cole
David Mandelbaum
Glenn Dubin
Leon Wagner
Henry Laufer
Peter May
Paul Tudor Jones

 

If all of the requested records cannot be emailed to me, please inform me by email of the portions that can be emailed and advise me of the cost for reproducing the remainder of the records requested ($0.25 per page or actual cost of reproduction).

If the requested records cannot be emailed to me due to the volume of records identified in response to my request, please advise me of the actual cost of copying all records onto a CD, hard drive or zip drive.

 If my request is too broad or does not reasonably describe the records, please contact me via email so that I may clarify my request, and when appropriate inform me of the manner in which records are filed, retrieved or generated. 

If it is necessary to modify my request, and an email response is not preferred, please contact me at the following telephone number: 518-xxx-xxxx.

 The New York Freedom of Information Law requires a response time of five business days. If access to the records I am requesting will take longer than this amount of time, please contact me with information about when I might expect copies.

If you deny any or all of this request, please cite each specific exemption you feel justifies the refusal to release the information and notify me of the appeal procedures available to me under the law.

 Thank you for your consideration and prompt attention to this request.

 Sincerely,

MICHAEL KINK, ESQ.
Executive Director
Strong Economy For All Coalition

klovett@nydailynews.com

Mitchell Robinson on Silencing Teachers

The One about Silencing Teachers, Retribution and the Smell of Fear from the Reformers...

 

LINK

I received the note below from a former student who is now a teacher. For obvious reasons, I won't identify her or where she teaches, but--shockingly--her story is becoming all too common...

"We had a union meeting yesterday where they warned us that the governor is going after the certificates of teachers that opted out their kids (of the state tests). The governor says it breaks our contract agreeing to protect and follow educational laws. Is this legal? Teachers are being targeted and warned to be extremely careful, especially on public media. I was just curious on your thoughts."

This theme of administrators and elected officials threatening teachers if they speak out publicly against tests, the Common Core State Standards, or other education policies seems to be growing stronger and louder recently, with reports of similar stories popping up in New Mexico (http://dianeravitch.net/2015/04/19/audrey-beardsley-the-silencing-of-the-educators-a-dangerous-trend/), Louisiana (http://www.westernjournalism.com/teachers-district-facing-retribution-criticizing-common-core/), New York (http://www.nydailynews.com/new-york/education/city-teacher-lost-fellowship-revealing-administration-fudged-regents-exam-court-papers-article-1.1990734), Arizona (http://www.azcentral.com/story/ejmontini/2015/03/27/legislature-arizona-school-board-association-sb-1172-free-speech-elections/70556134/), Missouri (http://www.stevenlin83.com/teachersfreepress/this-is-why-teachers-need-tenure-missouri-teacher-suspended-for-speaking-out/), and Michigan (http://stopcommoncoreinmichigan.com/2014/03/teachers-silenced/).

In Rochester, NY, an email from an administrator to the city's principals asked them to keep a list of teachers who might have shared information on testing for possible disciplinary action:

"An email sent from a high-level Rochester City School District official to principals is causing concern among teachers.

Chief of Schools Beverly Burrell-Moore sent the email Monday afternoon to principals she supervises. The email asks them to share names of teachers who have encouraged parents to refuse to allow their children to take state exams. 

"Per your building, please identify teachers who have sent letters or made phone calls to parents encouraging them to opt out their children from the NYS Assessments.  Also, identify teachers who you have evidence as utilizing their classrooms as 'political soap boxes.'  I need this updated  information no later than Tuesday morning for follow-up," the email states. (http://www.rochesterhomepage.net/story/d/story/rcsd-official-give-me-names-of-teachers-encouragin/69585/t4V1RVAqHk-lhmvN3pcetA)

Audrey Amrein Beardsley, a professor of education at Arizona State University, and the author of one of my favorite education blogs on the web, VAMBOOZLED, reports: "New Mexico now requires teachers to sign a contractual document that they are not to 'diminish the significance or importance of the tests” or they could lose their jobs. Teachers are not to speak negatively about the tests or say anything negatively about these tests in their classrooms or in public; if they do they could be found in violation of their contracts.' Beardsley wonders about the legality, and even the constitutionality of this sort of action: 'As per a related announcement released by the ASBA, this “could have a chilling effect on the free speech rights of school and district officials' throughout the state but also (likely) beyond if this continues to catch on. School officials may be held 'liable for a $5,000 civil fine just for sharing information on the positive or negative impacts of proposed legislation to parents or reporters.'”

While there is no doubt that these moves are indeed a "chilling" development in the education "reform" movement, I believe that they also reveal a quickly growing sense of fear and confusion among those in the reform community regarding the viability of their agenda. Indeed, the surprising strength of the "Opt Out" movement in New York, where as many as 200,000 students have reportedly refused to sit for the state's tests, has led to calls demanding the resignation of Merryl Tisch, Chancellor of the NYS Board of Regents.

 

If there is a silver lining to these threats it may be the impending crumbling of the reform agenda under the increased scrutiny from the public, the media and teachers. For far too long, policy "leaders" like Chancellor Tisch, Governors Cuomo, Kasich and Snyder, and Sec. of Education Duncan have responded to criticism of their agenda with either deafening silence or dismissive pandering, such as accusations that "painted parents as confused patsies of a labor action." Now, these feeble rejoinders are being exposed for what they have been all along: weak and arrogant responses to the legitimate demands for accountability from those so negatively impacted by these destructive policies.

 

These "leaders" are clearly scared, and they have every right to be. Now is the time to step up the pressure, and not let our voices be silenced. We are fighting for our students, our colleagues and our profession.

 

Let students learn, let teachers teach, and get the politicians out of education.

 

Mitchell Robinson

 

Mitchell Robinson is associate professor and chair of music education, and coordinator of the music student teaching programat Michigan State University. Robinson has held previous appointments as assistant professor and coordinator of the music education area at the University of Connecticut; assistant professor of school and community music education at the Eastman School of Music in Rochester, N.Y.; and director of wind activities and wind ensemble conductor at the University of Rochester. Robinson’s public school teaching experience includes 10 years as an instrumental music teacher, music department facilitator and high school assistant principal in Fulton, N.Y.

 

Robinson was awarded the 1997 Reston Prize from Arts Education Policy Review for his analysis of arts education policy, and the 1999 Research Award from the International Network of Performing and Visual Arts Schools. He recently concluded a term as Editor of the Music Educators Journal, and has served on the editorial/advisory boards of Arts Education Policy Review, the Journal of Music Teacher Education, the Bulletin of the Council for Research in Music Education, the Music Educators Journal, the International Journal of Education and the Arts, Research and Issues in Music Education, and the Desert Skies Research Symposium. His publications have appeared in Arts Education Policy Review, Music Educators Journal, Bulletin of the Council for Research in Music Education, Journal of Music Teacher Education, American Music Teacher, and the American School Board Journal. He was a chapter author for Great Beginnings for Music Teachers: Mentoring and Supporting New Teachers, published by MENC: The National Association for Music Education in 2003, and contributed a chapter to Teaching Music in the Urban Classroom, Volume 2: A Guide to Survival, Success, and Reform, published by Rowman & Littlefield Education. Robinson also contributed two chapters to the forthcoming Oxford Handbook of Qualitative Research in American Music Education, and was asked to write the chapter on music (Music Teaching and Learning in a Time of Reform) for What Every Principal Needs to Know: Instructional Leadership for Equitable and Excellent Schools, which will be published this summer by Teachers College Press. Robinson also served for two years as scholar-in-residence for music for the Connecticut State Department of Education, where his work focused on beginning music teacher induction and support.

 

A founding member of the Instrumental Music Teacher Educators Association (IMTE), Robinson received B.F.A. degrees in music education and trumpet performancefrom the State University of New York at Buffalo, the M.M.Ed. from Hartt School of Music, a Certificate of Advanced Study in Educational Administration from the State University of New York-Oswego, and a Ph.D. in music education from the Eastman School of Music. He also pursued post-graduate studies in music education and conducting at Northwestern University.

 

Dr. Robinson lives in Okemos, MI, with his wife Cathy, an elementary music teacher, their two sons, Jacob and Drew, and Buddy the Dog.

 

Selected Publications

Book Chapters

 

Robinson, M. (2015).  A Tale of Two Institutions: Or . . .Myths and Musings on Work/Life Balance.  In Theoharis, G. and Dotger, S. (Eds.), On The High Wire: Education Professors Walk Between Work And Parenting.  NY: Information Age Press.

 

Robinson, M. (2014).  Changing the Conversation: Considering Quality in Music Education Qualitative Research. In Conway, C. (Ed.), Oxford Handbook of Qualitative Research in American Music Education.  NY: Oxford University Press.

 

Robinson, M. (2014).  The Politics of Publication: Voices, Venues and Ethics. In Conway, C. (Ed.), Oxford Handbook of Qualitative Research in American Music Education.  NY: Oxford University Press.

 

Robinson, M. (2012).  Music Teaching and Learning in a Time of Reform.  In Theoharis, G. and Brooks, J. (Eds.), What Every Principal Needs to Know to CreateEquitable and Excellent Schools.  NY: Teachers College Press.

 

 

Articles

Robinson, M. (2015).  The Inchworm and the Nightingale: On the (Mis)use of Data in Music Teacher Evaluation.  Arts Education Policy Review, 116, (1), 9-21.

From the Band Room to the General Music Classroom: Why Instrumentalists Choose to Teach General Music. (accepted for publication). Bulletin of the Council for Research in Music Education, 2010.