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Wednesday, August 27, 2014

Redacting the name of the accused employee from the decision following a disciplinary hearing


Redacting the name of the accused employee from the decision following a disciplinary hearing
OATH Index #1536/14

In the course of a disciplinary hearing the employee placed certain of his personal medical information in the hearing record. He then submitted a post-hearing request in which he asked OATH Administrative Law Judge Alessandra F. Zorgniotti “to remove his name from the [disciplinary] report and recommendation because it discusses his medical history.”

Judge Zorgniotti denied the employee’s request explaining that “Requests for redaction are generally denied where, as here, respondent placed private health matters in issue by way of a defense and the request was made after respondent placed medical documents in the record and testified about them at a hearing.”

The ALJ said that the employee’s medical information in the record concerned a medical condition, high blood pressure, which condition “did not carry much or any stigma,” and the employee had shared information about his medical condition with a number of his co-workers prior to the incident that resulted in disciplinary charges being filed against him.

Sometimes the request for “redaction” takes the form of a request for anonymity by substituting “Anonymous” for the name of the employee. Such a request was considered in connection with a §3020-a decision by the Commissioner of Education in Decisions of the Commissioner of Education #12993, an disciplinary appeal dealing with an alleged sexual relationship between a teacher and a student. The teacher asked that the Commissioner refer to her as Anonymous "to prevent public dissemination of her name and potentially injurious information the record."

The Commissioner said that there was no requirement in law that confidentiality be maintained in an appeal from a determination of a §3020-a hearing panel nor does the potential for publicity require that he substitute “Anonymous” for the teacher’s name. He said that "the large amount of publicity following the hearing does not require that [he] take any additional steps to prevent public dissemination of the teacher's name. Also denied was the request to prevent public dissemination of material in the record "to the extent that such information is subject to disclosure under the Freedom of Information Law."

In Anonymous v Mexico CSD, 162 Misc 2d 300, the issue concerned disclosure the name of an educator involved in a disciplinary action.In this instance disciplinary charges filed against a teacher were settled before a "formal final decision" was issued. In the settlement document the teacher admitted guilt to certain of the charges.

When the District indicated that it was about to disclose the terms of the settlement agreement in response to a Freedom of Information Law [FOIL] request, the teacher asked Supreme Court to restrain the District from releasing this information. Supreme Court ruled that the settlement agreement was not exempt from disclosure under FOIL and must be provided to those seeking a copy of the agreement.

However, there may be some aspects or statements set out in a disciplinary settlement agreement that could be suppressed or redacted without offending the Freedom of Information Law.

In LaRocca v Jericho UFSD, 220 AD2d 424, the settlement agreement contained references to charges that the accused individual denied or were not admitted, together with the names of certain teachers. The Appellate Division ruled that disclosure of those parts of the settlement agreement setting out charges that were denied or not admitted and, presumably, the names of "certain teachers" would constitute an unwarranted invasion of privacy within the meaning of FOIL.

Significantly, the Appellate Division said that "as a matter of public policy, the Board of Education cannot bargain away the public's right to access to public records." The court ruled that the settlement agreement or any part of it providing for confidentiality or purporting to deny the public access to the document "is unenforceable as against the pubic interest."
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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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