Compelling disclosure of certain records pursuant to New York State's Freedom of Information Law

The Appellate Division reversed a Supreme Court's decision dismissing branches of a Freedom of Information petition seeking [1] certain certain records pertaining to the creation or maintenance of a police department's current databases and [2] attorney's fees and litigation costs. 

The court noted the requirement that a FOIL request reasonably describing the records sought is to enable the agency to locate the records in question, citing Matter of Konigsberg v Coughlin, 68 NY2d 245 and Matter of M. Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75. 

In order for an agency to deny a FOIL request for overbreadth, the Appellate Division  said the agency must demonstrate that the description is "insufficient for purposes of locating and identifying the documents sought", citing Matter of Konigsberg v Coughlin, 68 NY2d at 249.

The matter was then remitted to the Supreme Court for further proceedings. 

Click HERE access the Appellate Division's decision.

RULE REVIEW - New York State Department of Civil Service

Pursuant to Section 207 of the State Administrative Procedure Act (SAPA), notice is hereby provided of rules adopted by the New York State Civil Service Commission and the President of the New York State Civil Service Commission during calendar years 2000, 2005, 2010, 2015 and 2020 which remain in effect. 

Below is a brief description of each rule, including the statutory authority therefor; and where appropriate, a statement setting forth the ongoing need for each rule without further modification.

2000 Amendment to Chapter I of Title 4 of NYCRR (Rules for the Classified Service) Statutory Authority: Civil Service Law section 6 

Description of the Regulation: The resolution added a new subdivision (vii) to paragraph (2) of section (b) of Rule 4.5 to provide for a probationary term for positions of “Thruway Maintenance Worker” of not less than 26 weeks nor more than 52 weeks.

Action: The rule has functioned consistent with the purposes underlying its adoption and the Department of Civil Service recommends continuation without modification. 

Amendments to Chapter IV of 4 NYCRR (Regulations of the State Civil Service Commission [Commission’s Regulations]) Statutory Authority: Civil Service Law section 6 

Description of the Regulations: A new section 55.5 was added to the Commission’s Regulations and the previous sections 55.5 and 55.6 were renumbered 55.6 and 55.7, respectively. Section 55.5 codified the long-standing Civil Service Commission practice of granting prior approval for certain examination rating keys, according to the conditions and standards set forth within such section, upon the request of the Department’s Director of Examinations or his or her designee. 

Action: The rule has functioned consistent with the purposes underlying its adoption and the Department of Civil Service recommends continuation without modification.

2005 Amendment to Chapter I of Title 4 of NYCRR (Rules for the Classified Service) Statutory Authority: Civil Service Law section 6 

Description of the Regulation: The resolution added a new paragraph (viii) to subdivision (1) of subsection (b) of Rule 4.5 to provide for a probationary term for positions of “University Police Officer 1 and “University Police Officer 1 (Spanish Language)” of not less than 52 weeks nor more than 78 weeks. 

Action: The rule has functioned consistent with the purposes underlying its adoption and the Department of Civil Service recommends continuation without modification.

2010 Amendment to Chapter V of Title 4 of NYCRR (Regulations of the Department of Civil Service [President’s Regulations]) Statutory Authority: Civil Service Law sections 7 and 80

Description of the Regulation: The resolution added a new paragraph to Rule 72.1 designating the Authorities Budget Office as a separate unit for suspension, demotion or displacement within the Department of State. 

Action: The rule has functioned consistent with the purposes underlying its adoption and the Department of Civil Service recommends continuation without modification. 

2015 No current rules or regulations were adopted during calendar year 2015. 

2020 No current rules or regulations were adopted during calendar year 2020. 

 

Various amendments to the Appendices to the Rules for the Classified Service 

Appendix 1 (Exempt Class) Appendix 2 (Non-competitive Class)

Statutory Authority:

                Appendix 1: Civil Service Law, sections 6 and 41; 4 NYCRR 2.1

                Appendix 2: Civil Service Law, sections 6 and 42;

NYCRR 2.2 Description of the Regulations: Civil Service Commission rules relating to the jurisdictional classification of positions were specifically exempted from compliance with Executive Order No. 20 review requirements by the former Governor’s Office of Regulatory Reform, upon a finding that such review lacked substantial benefit. Based upon this determination, and pursuant to SAPA section 207(5), a full recitation of amendments to Appendices 1 and 2 to Title 4 of NYCRR adopted by the Civil Service Commission during calendar years 2000, 2005, 2010, 2015 and 2020 is hereby omitted. 

Public Comments There will be a forty-five (45) day public comment period following publication of this Notice in the New York State Register [Published on January 22, 2025]. 

Requests for information and public comments regarding the foregoing may be directed to: Eugene Sarfoh, Esq., Counsel, New York State Department of Civil Service, Empire State Plaza, Albany, NY 12239, (518) 473-2624, e-mail: public.comments@cs.ny.gov

 

Former deputy clerk sentenced for stealing more than $320,000 of county funds

New York State Comptroller Thomas P. DiNapoli, Erie County District Attorney Michael J. Keane, and Erie County Sheriff John C. Garcia recently announced former Deputy Erie County Clerk Alexander McDougall was sentenced to 1 1/3 to 4 years in state prison and ordered to pay full restitution after pleading guilty to stealing over $320,000 in county funds. 

“Today’s sentence sends a clear message that those who abuse their positions in government to line their own pockets will be caught and punished,” DiNapoli said. “Alexander McDougall abused his authority and diverted funds meant to benefit taxpayers for his own use.* I thank Erie County District Attorney Michael Keane, Erie County Sheriff John Garcia, and Erie County Comptroller Kevin R. Hardwick for their partnership in bringing him to justice.”

In August, McDougall pleaded guilty to felony counts of grand larceny and offering a false instrument for filing. 

District Attorney Keane said: “For more than four years, this defendant used his position in the Clerk’s Office to steal a significant sum of money from the residents of Erie County,” Keane said. “In addition to uncovering this brazen theft, I want to commend the Erie County Comptroller’s Office as well as our partners in the New York State Comptroller’s Office and Erie County Sheriff’s Office for their work on the case. I also commend the Erie County Clerk’s Office for their full cooperation in this investigation. While uncovering financial crimes can be an extensive and time-consuming process, I want the public to know that we are committed to obtaining justice and restoring their trust in government by prosecuting the offenders and seeking full restitution.” 

"Confidence in government requires confidence and trust in its public officer,” Garcia said. “I commend Detective Dan Brinkerhoff and the Erie County Sheriff's Office Investigative Services Unit for their thorough investigation into this matter. I would also like to thank Comptroller DiNapoli, District Attorney Keane and Comptroller Hardwick for their partnership throughout this case."

“Personally, I’m deeply saddened for Alex and his family, who I’ve known for years,” Hardwick said. “At the same time, I’m also proud of my staff, who uncovered the situation and saved the county hundreds of thousands of dollars.”

In early 2023, the Erie County Comptroller’s Office conducted an internal audit of the Erie County Clerk’s Registrar Division and referred its findings to DiNapoli’s office. DiNapoli’s office, in partnership with the Erie County District Attorney’s Office and the Erie County Sheriff, conducted a forensic audit and investigation and expanded the scope of the initial inquiry to include the period from Jan. 1, 2019, when McDougal became Deputy Clerk, through June 30, 2023.

The Erie County Clerk’s office collects a variety of fees such as court filings, mortgage taxes, and pistol permits. Staff prepare deposit slips for each payment. As deputy clerk, McDougall was responsible for reviewing each deposit slip and reconciling them with daily collection reports to ensure accuracy and accountability.

Investigators found that in hundreds of instances cash was collected but not deposited. In most instances, the total amount of cash collected by one of the clerks was missing.

The investigation uncovered that cash was deposited into McDougall’s personal bank account on several days the cash was not deposited into the county clerk’s bank account. DiNapoli’s auditors determined over $320,000 of recorded cash receipts were not deposited into the clerk’s account. 

* As noted in previous NYPPL reports of such acts of such misconduct by a public official, there is a term for such breaches of the public trust, "jobbery." Mirriam-Webster defines jobbery as "the improper use of public office or conduct of public business for private gain".

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by emailing a complaint to investigations@osc.ny.gov or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

Claimant, who suffered suffered from posttraumatic stress disorder as a result of being orally threatened denied Workers' Compensation benefits

Claimant, an applicant for Workers' Compensation Benefits, was operating a bus that was stopped at a red light when a man pounded on the door and demanded to be let onto the bus. When Claimant refused to open the door, the man climbed onto the front bumper of the bus, banged on the glass, bent a wiper blade and, after unsuccessfully attempting to reach in through a side window, broke a side mirror.

Claimant testified that the man orally threatened her, but she managed to close the window before he could reach inside. 

The employer's representative testified that encountering irate bus passengers was not uncommon and that, although most people simply "curse at the driver" and walk away, some do become sufficiently irritated to punch or kick the bus. 

In its decision, the Workers' Compensation Board [Board] found that "the job responsibilities of a bus operator necessarily involve interacting with the general public ..., including unruly ones," and that "it is expected that bus operators could be exposed to unruly individuals and property damage to the vehicle."

The Appellate Division said it "recognize that the record on appeal could also support a contrary conclusion". However, "we do not second-guess the Board's factual determination that this type of incident is one that, as a bus operator, 'claimant should reasonably and ordinarily be expected to encounter in [her] normal work environment,' as it is supported by substantial evidence in the record". Consequently, the court opined it "[found] no reason to disturb the Board's decision."

Justice Lynch, respectfully dissenting, said that in his view "the incident as described by the majority should not in any civilized society be deemed part of 'the normal work environment' of a transit bus operator. There is nothing 'normal' about being victimized by such dangerous conduct. Since it is undisputed that claimant suffered from posttraumatic stress disorder as a result, the Board erred in disallowing her claim."

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

Martin Luther King Jr. Day

Martin Luther King Jr. Day, a federal holiday in the United States of America, is observed on the third Monday of January each year.

Wikipedia notes Martin Luther King Jr. was the chief spokesperson for nonviolent activism in the Civil Rights Movement, which protested racial discrimination in federal and state law and civil society. It has been observed for 39 years.