STEP 1A Identify What You Want to Get: You should be able to obtain any of the following records (and more), either in whole, or in part, from the DOE’s FOIL Unit (which is part of the Office of the General Counsel). FOIL is the acronym for “Freedom of Information Law.” However be specific in terms of time frame and specific people you are requesting information about! (e.g.: All E-mails on servers that are accessible by personnel employed by DIIT and that either originated at, or were received by, the following account, from August 2012 to the present containing the name “_____” in the subject or body: _____@schools.nyc.gov.)
- Principal’s Procurement Card (P-Card) statements
- OSI investigative memos and reports
- Emails from NYC DOE Outlook (about you or someone else)
- Audits of your school
- Expenditures from Title I, II, III, ELL grants, etc.
- Observation reports
- Annual Professional Performance Review (APPR) forms
- Personnel files
STEP 1B Identify Whom You Plan to Contact: Make sure you address your FOIL request to Central Records Access Officer Joseph Baranello (JBaranello3@schools.nyc.gov and FOIL@schools.nyc.gov). You can “cc” various DOE officials or managerial attorneys, i.e., Chancellor Carmen Fariña (CGFarina@schools.nyc.gov), Panel for Educational Policy (panel@schools.nyc.gov), Courtenaye Jackson-Chase (CJackson-Chase@schools.nyc.gov), Robin Greenfield (RGreenf@schools.nyc.gov), Judy Nathan (JNathan@schools.nyc.gov) and politicians (whomever you think would make Mr. Baranello shiver or roll his eyes in aggravation but move faster). You can also “cc” Executive Director of the NYS Committee on Open Government Robert J. Freeman (Robert.Freeman@dos.ny.gov) and Assistant Director of the NYS Committee on Open Government Camille Jobin-Davis (Camille.Jobin-Davis@dos.ny.gov).
STEP 2 Drafting Your Letter: The following websites have good models to follow:
www.protectportelos.org/f-o-i-l
https://nycrubberroomreporter.blogspot.com/2012/09/how-to-file-freedom-of-information-foil.html
(Note: The current Chancellor is Carmen Fariña and her email address is CGFarina@schools.nyc.gov)
www.dos.ny.gov/coog (Committee on Open Government)
www.dos.ny.gov/coog/right_to_know.html
Your letter should follow a format similar to this one:
Dear Mr. Baranello,
Pursuant to the New York Freedom of Information Law, please send me copies, by email, of the following records:
[detail the items you want]
If you have any questions about this request, or require any type of rephrasing or clarification, please contact me by email at _____________.
Please be advised that the manner in which you respond to FOIL requests is constrained not only by FOIL, but also by the Regulations of the NYS Committee on Open Government. I would appreciate a response within five business days of receipt as required by law. Thank you for your cooperation.
Sincerely,
STEP 3 Send it Out: Before you send your letter . . . UNLESS THE MATERIALS CONCERN YOU EXPLICITLY (e.g.: emails that your principal wrote about you, OSI reports on you), please have a friend who is not employed by the DOE, and who has a surname different from yours, send out your request under his/her name and email address! Your principal will find out you’ve been asking for records on him/her if you use your real name for fifty FOIL requests (or maybe even for a single FOIL request)! Do a good spell check and grammar check before you send the request or ask the friend to send it. Ask for help if you think you weren’t explicit enough in your request. IT GETS EASIER!
STEP 4 The Wait: The attorneys or other staff of the FOIL Unit will send monthly “extension letters.” They interpret Chancellor’s Regulation D-110 (https://docs.nycenet.edu/docushare/dsweb/Get/Document-84/D-110__1-9-03.pdf) as giving them leeway to delay, delay, delay determining a “sensitive” or “inconvenient” FOIL request for months and years, seemingly ad infinitum. You or your friend can send an appeal to Courtenaye Jackson-Chase of a “constructive denial of access” if the delay seems excessive to you. Go to the following webpage: https://www.dos.ny.gov/coog/Right_to_know.html#appealsample
You will find “Appeal A Denial due to an Agency’s Failure to Respond in a Timely Manner.”
STEP 5 The Appeal: Your final response to the original FOIL request will contain statutory exemptions and may contain citations in situations where there is a complete or partial denial of access. Mr. Baranello or Ms. Chasan will quote:
- Statutory exemptions from the list contained in FOIL §87(2).
- FOIL Advisory Opinions from the NYS Committee on Open Government or case law (court decisions).
You can cite FOIL, case law, and the FOIL Advisory Opinions right back at them. When you get to this step, shoot Lydia an email for a copy of an actual appeal letter. Here are some additional resources:
- Contact Robert J. Freeman, the Executive Director of the NYS Committee on Open Government (Robert.Freeman@dos.ny.gov) and request an Advisory Opinion specific to the current request that was denied or partially denied, or where the determination is being excessively delayed.
- Go to https://www.dos.ny.gov/coog/foil_listing/findex.html and search for Advisory Opinions with key terms relating to your request, e.g.: “email,” “factual data,” “investigative materials,” or “oneself”
- Familiarize yourself with the following cases (You may be able to cite them in your appeal!):
- Lewis v. Giuliani (NYS Supreme Court, New York County, 4/21/97): can be used in a denial of access to investigative files — “any material within closing memoranda for non-criminal investigations . . .must be disclosed unless respondents can ‘convincingly demonstrate’ that material must remain undisclosed under some other exemption [than FOIL §87(2)(e)(iii, iv)].” https://nycrubberroomreporter.blogspot.com/2014/03/freedom-of-information-requests-and.html
- Gould v. NYC Police Department (89 N.Y.2d 267): —If Mr. Baranello denies access to personnel records/files because they lack “factual data,” use this case! www.law.cornell.edu/nyctap/I96_0232.htm
- Blecher v. NYC Board of Education (New York Law Journal, 10/25/79): —In the phrasing of the request that was the subject of Blecher, the word “all” was used and it covered a ten-year period. A manual search, without the aid of the Internet or software, was used to compile the records from various categories in order to grant access to the records sought in the Blecher FOIL request. (Email dtoesteering@googlegroups.com for a copy).
- UFT v. NYC Health & Hospitals Corporation (104 Misc. 2d 623): Approvingly cited Blecher within the decision. Approximately 1,500 grievances yearly are filed by HHC employees. The UFT wanted access only to the ones involving registered nurses, but they were not segregated or filed separately from those filed by other employees. The court found that the grievances and the decisions thereon, are accessible, but the personal identifying details should be removed. A “shortage of manpower” is not a defense for denying access to records. www.leagle.com/decision/1980727104Misc2d623_1606.xml/FED%20OF%20TEACHERS%20v.%20NYC%20HOSPS
Some Reminders for Your Appeal:
- Attach the initial acknowledgment letter, all extension letters, and the determination letter.
- Address all appeals to Ms. Courtenaye Jackson-Chase (CJackson-Chase@schools.nyc.gov and FOIL@schools.nyc.gov).
- You have 30 CALENDAR days to file an appeal if you are denied access to a record.
- Copy and paste the text of the original request, and its dated, time stamped header, into the body of your email. You can use the following style:
Dear Ms. Jackson-Chase,
Re: FOIL Appeal F9887
Pursuant to the New York Freedom of Information Law (FOIL) and the Regulations of the NYS Committee on Open Government, I hereby appeal the denial of access regarding my FOIL request F9887 (OR …I hereby appeal the failure of the Central Records Access Officer to issue a final determination with respect to my FOIL request F9887), which was made on December 24, 2013, and sent to Central Records Access Officer Joseph Baranello.
I have attached the acknowledgment of receipt letter and the final determination letter. (OR I have attached the acknowledgment of receipt letter and the series of extension letters. As of today’s date, I have not received Mr. Baranello’s final determination.)
I have included a copy of my original request below the dashed line.
I disagree with the reasons for denial due to the following…
(OR The delay in determining my request is excessive because…)
[And now, list your citations which you feel would justify the granting of access to the records (or portions thereof) you requested or would justify Ms. Jackson-Chase’s directing Mr. Baranello to determine the request by a particular date.]
I will look forward to hearing from you within ten business days as is required by law.
Please send a copy of your decision to Robert J. Freeman at Robert.Freeman@dos.ny.gov.
Thank you for your cooperation.
Sincerely,
NAME OF FOIL APPELLANT
Cc: As appropriate
———————————————————————————————————————————————————–
[Paste your original request with its header showing the date and time it was emailed below the dashed line.]
APPEAL DENIED? You may want to file a lawsuit pursuant to Article 78 of the Civil Practice Law and Rules (CPLR) in order to challenge the denial of access in the NYS Supreme Court. The link for forms and instructions from the court’s Help Center is https://www.nycourts.gov/courts/1jd/supctmanh/Self_Rep_Forms_Link.shtml To file an Article 78, follow the instructions for filing a Notice of Petition (not an Order to Show Cause) in the booklet “How to Start a Special Proceeding.” The booklet is not organized well and jumps around. The forms you will need are:
- Index Number Purchase Sheet (available in the Help Center, Room 116 at 60 Centre Street)
- Request for Judicial Intervention (a fillable RJI is available at https://www.nycourts.gov/forms/rji/UCS-840-fillable.pdf).
The best way to learn how to write a Notice of Petition and an Article 78 petition is to go to SCROLL (Supreme Court Records On-Line Library) and look at different Article 78 petitions, especially those in which the DOE is the defendant. Technically the petition should just contain the facts and allegations with a stated Cause of Action, and the legal arguments should go in a Memorandum of Law. One Article 78 petition about FOIL and the DOE is Advocates for Children and the Asian America Legal Defense and Education Fund v. the NYC Department of Education:
- https://www.advocatesforchildren.org/sites/default/files/on_page/AFC_v._NYCDOE_Brief_in_Support_of_Petition.pdf
- https://www.advocatesforchildren.org/sites/default/files/on_page/AFC_v._NYCDOE_Verified_Petition.pdf
Have a FOIL question? Best way is to email us at: dtoesteering@googlegroups.com. We will get back to you within 2-3 business days.
