Friday, April 08, 2016

Custodian of a public record may decline to release pre-decision materials prepared to assist in final decision making being sought pursuant to a Freedom of Information request


Custodian of a public record may decline to release pre-decision materials prepared to assist in final decision making being sought pursuant to a Freedom of Information request
Thomas v New York City Dept. of Educ., Decided on March 31, 2016, Appellate Division, First Department

Supreme Court denied the Article 78 petition filed by Michael P. Thomas seeking the disclosure of certain records pursuant to Public Officers Law §87, New York State’s Freedom of Information Law [FOIL].

Thomas has submitted a FOIL request to the New York City Department of Education [DOE] in order to obtain records* pertaining to the Department’s investigation of his allegations that certain students improperly received mathematics credits or diplomas.

Citing Public Officers Law §87(2)(g), the Appellate Division sustained the Supreme Court’s ruling. The court said that DOE had acted properly in finding that the intra-agency documents at issue were exempt from disclosure as “the documents constituted, among other things, pre-decisional materials prepared to assist DOE in making its final decision."

Public Officers Law §87(2)(g) provides that an agency, in accordance with its published rules, shall make available for public inspection and copying all records, “except that such agency may deny access to records or portions thereof that are inter-agency or intra-agency materials which are not:

“i. statistical or factual tabulations or data;

“ii. instructions to staff that affect the public;

“iii. final agency policy or determinations;

“iv. external audits, including but not limited to audits performed by the comptroller and the federal government.”

* The release of some public records may be limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_02520.htm

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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