Appellate Division reverses Workers' Compensation Board's denial of benefits sought by participant in the World Trade Center rescue, recovery and cleanup operations

Claimant for Workers' Compensation Benefits served as a crisis response services provider to provide services to first responders to the September 11, 2001 terrorist attacks on the World Trade Center [WTC]. Claimant was paid for her services during that time and mainly worked at a command center set up by her employer at a hotel near the WTC site. After her paid assignment ended, Claimant returned and worked as a volunteer at the WTC site for two 10 day periods.

In 2018, Claimant filed a claim for workers' compensation benefits for injuries sustained due to exposure to toxins at the WTC site. A Workers' Compensation Law Judge [WCLJ] determined that Claimant was a volunteer during her 2001 engagements and, among other things, Claimant's activities were covered by Workers' Compensation Law Article 8-A and established the claim for sarcoidosis. 

The Workers' Compensation Board reversed the WCLJ's finding, concluding, among other things, that claimant's activities were not covered by Workers' Compensation Law Article 8-A because she was not a participant in the WTC rescue, recovery and cleanup operations and disallowed the claim and subsequently the Board denied Claimant's application for reconsideration and, or, "full Board review". Claimant appealed the Board's determinations.

The Appellate Division observed that [1] the "Workers' Compensation Law Article 8-A was enacted to remove statutory obstacles to timely claims filing and notice for latent conditions resulting from hazardous exposure for those who worked in rescue, recovery or cleanup operations following the WTC September 11th, 2001 attack; [2]  that this legislation was intended to be liberally construed to provide a potential avenue of relief for workers and volunteers suffering ill health as a result of their efforts in the aftermath of the terrorists' attacks; and that [3] the Board has required that the injured claimant directly participate in or otherwise have some tangible connection to the rescue, recovery or cleanup operations in order to fall within the coverage of Workers' Compensation Law Article 8-A, said that in order for the Board to deny a claimant's application for benefits, "the Board's underlying factual basis must be supported by substantial evidence." 

Claimant had testified that, during her October 2001 and December 2001 assignments, she was assigned to the NYPD's command center for the rescue, recovery and cleanup operations. Considering Claimant's "connection to the rescue, recovery and cleanup operations, and given the liberal construction afforded the remedial statute,"the Appellate Division concluded that "The Board's determination that [Claimant] did not participate in the rescue, recovery and cleanup operations under Workers' Compensation Law Article 8-A is not supported by substantial evidence. 

Accordingly the Court reverse the Board's decisions and remit the matter to the Board for further proceedings.

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

Some basics concerning New York State's Freedom of Information Law

In this proceeding pursuant to CPLR Article 78 to compel disclosure of certain records pursuant to the Freedom of Information Law [FOIL], Public Officers Law Article 6, Supreme Court essentially denied Plaintiff's petition and dismissed the proceeding.

Plaintiff [Reporter] had submitted a FOIL request to the Suffolk Department of Information Technology [IT] for a "CSV export of the County's employee, which request was denied by IT's record access officer. Reporter then filed an administrative appeal with County's FOIL appeals officer. Reporter's appeal was denied on the ground that the IT department did "not maintain" the requested record.

Reporter next commenced the instant CPLR Article 78 proceeding to compel disclosure of the County's employee telephone directory and for an award of attorneys' fees and litigation costs.

As above noted,  Supreme Court denied the petition and dismissed the proceeding, concluding, among other things, that the Defendants had demonstrated that the IT department did not possess a county-wide telephone directory and that it was not under an obligation to create one. Reporter appealed the Supreme Court's judgment.

Stating that "In order to promote open government and public accountability, FOIL imposes a broader duty on government to make its records available to the public", the Appellate Division reversed the lower court's decision noting that "FOIL proceeds under 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] "All government records are thus presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law §87(2)".

In the words of the Appellate Division: "[W]hen faced with a FOIL request, an agency must either disclose the record sought, deny the request and claim a specific exemption to disclosure, or certify that it does not possess the requested document and that it could not be located after a diligent search" .

Further, the Court noted that "[T]he burden of proof rests solely with the agency to justify the denial of access to the requested records, and this burden must be met in more than just a plausible fashion as FOIL and requires that the agency 'shall certify that it does not have possession of such record or that such record cannot be found after diligent search'".

Although as a general rule, an agency responding to a FOIL request is not required to create any new record or data that is not already possessed and maintained by it as such, "even where an entity properly certifies that it was unable to locate requested documents after performing a diligent search, the person requesting the documents may nevertheless be entitled to a hearing on the issue where he or she can 'articulate a demonstrable factual basis to support [the] contention that the requested documents existed and were within the [entity's] control'".

Finding that the Supreme Court had improperly denied Reporter's petition because the affidavit of the IT department's employee, which Defendants submitted in opposition to Reporter's petition, raised "questions of fact . . . as to whether at least some of the requested records can be located, identified, and produced" by the IT department, the Appellate Division reinstated Reporter's petition and remit the matter to the Supreme Court for further proceedings to determine the extent to which the IT department may possess responsive records.

As Reporter's petition remained undetermined, the Reporter's request for an award of attorney's fees and litigation costs was deemed premature.

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

Administrators and clerks of the Vermont Superior Court asked the United States District Court for the District of Vermont to issue a permanent injunction permitting withholding the release of papers filed in the course of litigation so that they would not be available to the public before being reviewed by court personnel to make certain that they were signed, that they did not contain unredacted confidential information, that they complied with technical requirements under the court’s rules, and that they did not show unredacted filers’ notes as the Vermont courts was transitioning to the electronic filing of such materials with the courts.

The Plaintiff news and related media organization, contending such a practice constituted a violation of their First Amendment right of access to court documents, sued. After a bench trial, the district court issued a judgment in Plaintiffs’ favor, holding that Vermont’s pre-access review process violated Plaintiffs’ First Amendment right of access to judicial documents, and issued a permanent injunction barring Defendants from withholding complaints until the completion of a pre-access review.

In the words of the United States Second Circuit Court of Appeals “We agree with the Plaintiffs and the district court that Vermont’s practice in the period reviewed by the trial court violated Plaintiffs’ First Amendment right of access”… but then opined that it “that it agreed with the Defendants that the term of the permanent injunction were not supported by the court’s findings”.

Accordingly, the Circuit said it affirmed the district court’s judgment to the extent it found that the practice it reviewed violated the First Amendment, but vacated the permanent injunction “to the extent that it barred the Defendants from engaging in any review for unredacted confidential by the Plaintiffs information before permitting access to the complaints and remanded the matter for further proceedings. 

Click HERE to access the decision of the Second Circuit Court of Appeals.