New York State Comptroller Thomas P. DiNapoli releases State Department and Agency audits

On October 16, 2024, New York State Comptroller Thomas P. DiNapoli issued the following State Department and Agency reports.

Click on the text highlighted in color to access the item posted on the Internet

Empire State Development – New NY Broadband Program (Follow-Up) (2024-F-10) The New NY Broadband Program (Program)—launched in 2015 and managed by the Broadband Program Office (BPO), a division of Empire State Development (ESD)—was designed to ensure that every New Yorker had access to high-speed broadband. A prior audit, issued in July 2022, found BPO effectively monitored and managed the Program; however, the Program did not achieve its overall goal of providing statewide broadband availability. In March 2021, BPO officials stated more than 14,000 households were unserved or underserved. ESD made progress in addressing the problems identified in the initial audit report. Of the initial report’s three recommendations, one was implemented, one was partially implemented, and one is no longer applicable.

Department of Health – Oversight of the Early Intervention Program (Follow-Up) (2024-F-3) The mission of the Early Intervention Program (Program) is to identify and evaluate as early as possible those infants and toddlers whose healthy development is compromised and provide appropriate intervention to improve child and family developments. The Department of Health (DOH) oversees both the Program and its contracts with the 57 counties in the State and New York City that administer the Program at the local level. A prior audit, issued in February 2023 found that many children who could benefit from the Program weren’t receiving services, and children who were receiving services weren’t always getting them in a timely manner. DOH made some progress in addressing the issues identified in the initial audit; however, additional actions are needed. Of the initial report’s five audit recommendations, one was implemented and four were partially implemented.

State Education Department – Privacy and Security of Student Data (Follow-Up) (2024-F-11) The State Education Department (SED) is part of the University of the State of New York, one of the most complete, interconnected systems of educational services in the United States. SED is responsible for safeguarding its data and ensuring the confidentiality, integrity, and availability of its systems. A prior audit, issued in May 2023, found that SED did not fully comply with its policies related to information security and data privacy, including completing the data classification for all types of information that it creates, collects, processes, or stores, some of which contain students’ personally identifiable information. SED officials made significant progress in addressing the problems identified in the initial audit report. Of the initial report’s three audit recommendations, two were implemented and one was partially implemented.

Office of Information Technology Services – Windows Domain Administration and Management (Follow-Up) (2024-F-12) The Office of Information Technology Services (ITS) is responsible for maintaining Active Directory domains on behalf of the State’s Executive agencies. Because Active Directory and associated domain controllers ultimately control access and authorization in a Microsoft Windows environment, it is vital to ensure that appropriate controls are in place and that policies and standards are being adhered to. A prior audit, issued in May 2023, determined ITS did not have certain security controls in place, according to several ITS policies and standards, to ensure appropriate management and monitoring of its Active Directory environment. ITS officials made progress in addressing the problems identified in the initial audit report. Of the confidential report’s six audit recommendations, three were implemented, two were partially implemented, and one was not implemented.

Workers’ Compensation Board – Assessment of Costs to Administer the Workers’ Compensation Program for the Three State Fiscal Years Ended March 31, 2023 (2024-M-1) The purpose of this report was to ascertain the total expenses that the Workers’ Compensation Board (Board) incurred in administering the Workers’ Compensation Program (Program) for the three State Fiscal Years ended March 31, 2023. The Office of the New York State Comptroller performed certain procedures, which were agreed to by the Board, to ascertain the Board’s expenses. Annual expenses to administer the Program averaged about $214.1 million. 

State Education Department (Preschool Special Education Audit Initiative) – Adaptive Solutions Multi Services, PLLC – Compliance With the Reimbursable Cost Manual (2022-S-48) Adaptive Solutions Multi Services, PLLC (Adaptive Solutions), a New York City-based proprietary organization, is approved by the State Education Department (SED) to provide special education services to children with disabilities who are between the ages of 3 and 5 years. For the 3 fiscal years ended June 30, 2018, Adaptive Solutions reported approximately $11.2 million in reimbursable costs for the SED preschool cost-based programs. Auditors identified $803,921 in reported costs that did not comply with requirements.

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Supreme Court denies defendant's motion to disqualify plaintiff's attorneys from representing the plaintiff

Defendant, individually and in his capacity as investigative consultant to the Onondaga County Board of Ethics, moved to disqualify Plaintiff's attorneys from further representation of Plaintiff in the underlying action on the ground that "they were interested witnesses whose testimony would be necessary and relevant to the action."

Supreme Court denied Defendant's motion, whereupon Defendant appealed Supreme Court's ruling. The Appellate Division unanimously affirmed the lower court's decision.

In the words of the Appellate Division: "We conclude that [Defendant] failed to meet his "burden of making 'a clear showing that disqualification is warranted' ", citing  Lake v Kaleida Health, 60 AD3d 1469 and S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437.

Accordingly, said the court, "Supreme Court thus did not abuse its discretion in denying the motion (see generally HoganWillig, PLLC v Swormville Fire Co., Inc., 210 AD3d 1369)."

Click HERE to access the decision of the Appellate Division posted on the Internet.

Access to certain public records pursuant to New York State's Freedom of Information Law may be barred under certain circumstances

Petitioner in this CPLR Article 78 action challenged the New York State Department of Financial Services' [DFS] denial of Petitioner's Freedom of Information Law (FOIL) request seeking "all documents and information received from third parties related to a ... consent order entered into between DFS and Deutsche Bank AG, Deutsche Bank AG New York Branch, and Deutsche Bank Trust Company of the Americas [Deutsche Bank]." Supreme Court dismissed the petition and the Appellate Division affirmed the lower court's ruling.

In Matter of Lane v County of Nassau, 221 AD3d 1008, among other decisions, New York courts have acknowledged that New York State's Freedom of Information Law [FOIL] is founded on the premise that the public is vested with "an inherent right to know and that official secrecy is anathematic to our form of government" and "FOIL ... imposes a broad duty on government agencies to make their records available to the public."

However, §36(10) of New York State's Banking Law provides that with respect to all reports of examinations and investigations, "correspondence and memoranda concerning or arising out of such examinations and investigations ... shall not be made public unless, in the judgment of the superintendent [of Banking], the ends of justice and the public advantage will be subserved by the publication thereof ...."*

The documents pursuant to FOIL in this instance were provided by Deutsche Bank to DFS during the course of its investigation of an alleged money laundering scheme by Danske Bank's Estonian branch. Accordingly, opined the Appellate Division, documents requested by Petitioner fall squarely within the ambit of Banking Law §36(10) and, in this instance, DFS has interpreted "correspondence," as the term appears in the Banking Law provision, to include not only written communications such as emails and letters, but also documents attached to, enclosed with, or obtained through its correspondence with regulated entities.

The Appellate Division sustained the Supreme Court's decision, opining "As the agency responsible for the administration and implementation of §36 of the Banking Law, DFS' construction of the statute is entitled to deference, as its interpretation is rational", citing Matter of Brooklyn Assembly Halls of Jehovah's Witnesses, Inc. v Department. of Envtl. Protection of City of N.Y., 11 NY3d 327 and Matter of Partnership 92 LP & Bldg. Mgt. Co., Inc. v State of N.Y. Div. of Hous. & Community Renewal, 46 AD3d 425, affd 11 NY3d 859. 

Further, the court held "DFS's interpretation of 'correspondence' does not deviate from the statutory language or legislative history" nor does state law require DFS to provide "an index of withheld documents or explain which records are exempt and why they cannot be produced or redacted".

* N.B.  The release of certain public records may be limited by statute. Examples of such limitations are set out in Education Law, §1127 - Confidentiality of records and §33.13 of the Mental Hygiene Law. 

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Selected links to items focusing on government operations posted on the Internet during the week ending October 12, 2024. 

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