The custodian of a public record must articulate particularized and specific justification for denying access to a record requested pursuant to the Freedom of Information Law

The custodian of a public record must articulate particularized and specific justification for denying access to a record requested pursuant to the Freedom of Information Law

Villalobos v New York City Fire Dept., 2015 NY Slip Op 06249, Appellate Division, Second Department

Amaury Villalobos filed a Freedom of Information Law [FOIL] request seeking certain documents in the custody of the New York City Fire Department. Among the material demanded by Villalobos were documents containing the residence address of certain individuals. After an in camera review of the documents demanded, Supreme Court directed the New York City Fire Department to provide Villalobos with “legible unredacted copies of all documents inspected by the court in camera” which would documents would then include the residence address of the individuals.

The Fire Department appealed the Supreme Court ruling and the Appellate Division deleted that portion of Supreme Court’s order that, in effect, directed the Department to provide the Villalobos with residence addresses contained in the documents inspected by the court in camera.

The Appellate Division explained that under FOIL, government records are "presumptively open" for public inspection and copying, unless they fall within an enumerated statutory exemption* set out in Public Officers Law §87(2). However, said the court, “exemptions are to be ‘narrowly construed’ so as to ensure maximum public access … and the burden rests on the agency to demonstrate that the requested material in fact qualifies for exemption.” To meet this burden, said the court, the agency must "articulate particularized and specific justification" for the nondisclosure at issue.”

In this instance the Appellate Division concluded that the Fire Department “failed to articulate a particularized and specific justification for any of the redacted information at issue, except for the residence addresses contained in the subject documents.” The court opined that the Department’s “conclusory assertions” that the redacted information, other than residence addresses, fell within a statutory exemption were insufficient to meet its burden of demonstrating that the requested information was exempt from disclosure.

As to the disclosure of the residence addresses contained in the documents, the court ruled that such disclosure “would constitute an unwarranted invasion of personal privacy … since, under the circumstances of this case, the privacy interests at stake outweigh the public interest in disclosure of that information.

Accordingly, the Appellate Division modified the Supreme Court’s judgment so as to permit redaction of the residence addresses contained in the documents at issue.

* The release of some public records is limited by a statute such as Education Law, §1127 - Confidentiality of records or §33.13, Mental Hygiene Law - Clinical records; confidentiality. However, it should also be noted that there is no statutory bar to the custodian of the public record providing documents 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.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06249.htm

Parties may negotiate pre-disciplinary suspension procedures in the course of collective bargaining

Parties may negotiate pre-disciplinary suspension procedures in the course of collective bargaining
Transport Workers Union of Greater N.Y. v Bianco, 2015 NY Slip Op 06041, Appellate Division, First Department

The Appellate Division said Supreme Court properly dismissed the Transport Workers Union's complaint alleging that the collective bargaining agreement provision setting forth procedures for pre-disciplinary suspensions was void under Civil Service Law §75.

The court said that "Rights under Civil Service Law §75 may be supplemented, modified or replaced by the terms of a collective bargaining agreement," which is the case here with respect to disciplinary grievance procedures set forth under the Civil Service Law, “including those concerning pre-disciplinary suspensions.”

§76.4 of the Civil Service Law, in pertinent part, provides that §§75 and 76 of the Civil Service Law relating to the removal or suspension of “officers or employees in the competitive class of the civil service of thestate or any civil  division” may be supplemented,   modified or replaced by agreements negotiated between the state and an employee organization  pursuant  to  Article 15 of the Civil Service Law.

In Antinore v State, 40 NY2d 6, the Court said that a union could bargain away a collective bargaining unit member’s statutory disciplinary rights in favor of an alternative disciplinary procedure as long as the alternate procedure provided constitutional due process protections equivalent to those available under the statutory procedure that it replaced.

The Transport Workers Union v Bianco decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06041.htm

The Antinore decision is posted on the Internet at:

http://ny.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19750718_0043291.NY.htm/qx

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending July 26, 2015

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending July 26, 2015

[Click on text highlighted in colorto access the full report]

Audits of the following jurisdictions completed:

City of Johnstown;

http://www.osc.state.ny.us/localgov/audits/cities/2015/johnstown.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215brelease

North Patchogue Fire District

http://www.osc.state.ny.us/localgov/audits/firedists/2015/northpatchogue.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215brelease

Town of Rosendale

http://www.osc.state.ny.us/localgov/audits/towns/2015/rosendale.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215brelease

Town of West Seneca

http://www.osc.state.ny.us/localgov/audits/towns/2015/westseneca.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215brelease

Amani Public Charter School

http://www.osc.state.ny.us/localgov/audits/schools/2015/amanicharter.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215crelease

Holland Central School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/holland.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215crelease

Mount Pleasant Central School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/mountpleasant.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215creleaseand the

Onteora Central School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/onteora.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215crelease

Comptroller finds persistent problems at the Long Island Power Authority

New York State Comptroller Thomas P. DiNapoli recommended improvement of oversight of the Long Island Power Authority (LIPA) after a report by his office found that previous reforms have not reduced costs for ratepayers and debt levels continue to rise. http://www.osc.state.ny.us/press/releases/july15/072415.htm?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072415release

Comptroller DiNapoli expects the “Tax Cap” will drop below 1% in 2016

Property tax growth for local governments will be capped at less than one percent for the 2016 fiscal year, according to a report issued by State Comptroller Thomas P. DiNapoli. The report noted the allowable tax levy growth factor will be 0.73 percent for entities that operate on a calendar-based fiscal year – which includes all counties, towns, fire districts, 44 cities and 10 villages.

http://www.osc.state.ny.us/press/releases/july15/072015.htm?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072015release

Former Fire District Treasurer sentenced after being found guilty of theft of district funds

Lisa Stone, the former treasurer of Pulteney Fire District No. 2 was sentenced to five years probation and ordered to pay full restitution for stealing more than $6,800 in fire district funds, after an audit and investigation by State Comptroller Thomas P. DiNapoli revealed that she paid herself an illegal second salary.

http://www.osc.state.ny.us/press/releases/july15/072315.htm?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072315release

Employer must permit employee to attempt to cure any defects in his or her Family Medical Leave Act request before denying it

Employer must permit employee to attempt to cure any defects in his or her Family Medical Leave Act request before denying it

Hansler v Lehigh Valley Hospital Network, USCA, 3^rd Circuit, Docket #14-1772

Deborah Hansler requested intermittent leave from her former employer, Lehigh Valley Health Network (“Lehigh Valley”), under the Family Medical Leave Act of 1993 (“FMLA”, 29 U.S.C. § 2601 et seq.

Hansler submitted a medical certification requesting leave for two days a week for approximately one month. Her complaint alleged that the medical certification refers to the length of her requested leave but not the nature or duration of her condition.

A few weeks later, after she had be absent from work for several days, Lehigh Valley, citing “excessive absences,” told Hansler that her request for leave had been denied and terminated her employment. The Circuit Court of Appeals noted that in so doing, Lehigh Valleydid not seek any clarification with respect to Hansler’s medical certification as required by law.

Hansler sued but the federal district court dismissed her complaint on the basis that the medical certification supporting Hansler’s request for leave was “invalid.” In contrast, the Circuit Court concluded that “in failing to afford Hansler a chance to cure any deficiencies in her medical certification, Lehigh Valley violated the Medical Leave Act.”

Reversing the district court, the Circuit Court remanded the matter to the district court “for further proceedings.”

The decision is posted on the Internet at:

http://www.ca3.uscourts.gov/search-opinions

Failure to exhaust administrative remedies and other procedural error result in dismissal of the employee’s efforts to have courts adjudicate her claims

Failure to exhaust administrative remedies and other procedural error result in dismissal of the employee’s efforts to have courts adjudicate her claims

2015 NY Slip Op 05779, Appellate Division, First Department

The Appellate Division said that Supreme Court correctly dismissed the complaint filed by an employee [Grievant] against New York City Department of Education (DOE), because Grievant had failed to exhaust the administrative remedies set forth in the relevant collective bargaining agreement.

Grievant, said the court, was not excused from exhausting her administrative remedies by simply alleging that her collective bargaining representative [Union] had mishandled her grievance, because she could have instituted the grievance procedure herself but failed to so.. Further, explained the Appellate Division, “This is not a case where the Unionhad sole, exclusive authority over the grievance process.*

In addition, the court noted that the City of New Yorkis not a proper party to this action, as it cannot be held liable for the Grievant’s employer, the New York City Department of Education.

As to Grievant’s claim against the Union  was not brought within the applicable four-month statute of limitations. as the statute of limitations was not tolled for the purposes of the CPLR because Grievant’s initial federal action, which was dismissed for lack of subject matter jurisdiction, was, itself, untimely. In addition, the Appellate Division said that Grievant “was not entitled to the 30-day toll [of the statute of limitations] created by the application of Education Law §3813(1) and CPLR §204(a) because the union is not an entity covered by Education Law §3813(1).”

*Typically a union has “exclusive authority” with respect to demanding arbitration of an alleged violation of a term or condition of employment set out in a collective bargaining agreement.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05779.htm