Failure of the custodian of a public record sought pursuant to a Freedom of Information Law request to respond to the request within the relevant time limit deemed a denial of the request

Failure of the custodian of a public record sought pursuant to a Freedom of Information Law request to respond to the request within the relevant time limit deemed a denial of the request

Kohler-Hausmann v New York City Police Dept., 2015 NY Slip Op 08084, Appellate Division, First Department

Issa Kohler-Hausmann [Kohler-Hausmann] submitted a Freedom of Information [FOIL] request to the New York City Police Department [NYPD]. Although NYPD extended its deadline to respond to Kohler-Hausmann’s FOIL request pursuant to Public Officers Law §89(3)(a), it failed to respond for months after that deadline.

Subsequently Kohler-Hausmann, representing herself, initiated litigation seeking attorney's fees or litigation costs. Supreme Court denied her application. Kohler-Hausmann appealed, contending that she was entitled to such fees or costs as the prevailing party notwithstanding NYPD's eventual voluntary disclosure of the subject of her FOIL request.

The Appellate Division noted that by failing to respond within the deadline, “NYPD constructively denied Kohler-Hausmann FOIL request” and such a “constructive denial” satisfied the requirement that she exhaust her administrative remedies. Citing NYS Defenders Association v New York State Police, 87 AD3d 193, the court observed that NYPD's voluntary disclosure of the material sought by Kohler-Hausmann notwithstanding, her claim for attorney's fees and other litigation costs was not moot, as "the voluntariness of ... disclosure is irrelevant to the issue of whether [a] petitioner substantially prevailed in [a FOIL] proceeding," since "to allow a respondent to automatically forestall an award of counsel fees simply by releasing the requested documents before asserting a defense would contravene the very purposes of FOIL's fee-shifting provision."

Further, the court said that the “attorney petitioner's self-representation” does not preclude an award of attorneys' fees as other “similarly worded statutes have been interpreted to authorize an award of attorneys' fees to a prevailing litigant who represented himself or herself or had the benefit of free legal services.”

The Appellate Division held that:

[1] Kohler-Hausmann met the statutory requirements for seeking "other litigation costs reasonably incurred" by her in pursuit of her Freedom of Information [FOIL] request;

[2] that she "substantially prevailed;" and 

[3] NYPD "failed to respond to [her request] ... within the statutory time."

Accordingly, the court remanded the matter to Supreme Court for consideration of herrequest for attorneys' fees or litigation costs.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08084.htm

Workers' Compensation Board’s granting an award for a work-related injury does not, "by operation of collateral estoppel,” automatically entitle the claimant to General Municipal Law §207-c benefits

Workers' Compensation Board’s granting an award for a work-related injury does not, "by operation of collateral estoppel,” automatically entitle the claimant to General Municipal Law §207-c benefits

Jackson v Barber, 2015 NY Slip Op 08025, Appellate Division, Third Department

Lawrence Jackson, diagnosed with plantar fasciitis* in his left foot while working as a correction officer for the Cortland County Sheriff's Department, filed an application for workers' compensation benefits. Jackson’s claim was granted and the Workers' Compensation Board confirmed the award.

Jackson also applied for disability benefits pursuant to General Municipal Law §207-c. Annette Barber, Cortland County’s Personnel Officer denied Jackson’s application on the merits upon her determination that petitioner's condition was idiopathic, i.e., without a specific cause.

Jackson appealed and Barber upheld her initial determination based on the Hearing Officer's recommendation to do so and Jackson initiated an CPLR Article 78 action challenging Barber’s decision.

Jackson argued that a determination by the Workers' Compensation Board that an injury is work-related by operation of collateral estoppel, automatically entitle an injured employee to General Municipal Law §207-c benefits." The Appellate Division disagreed and citing Balcerak v County of Nassau, 94 NY2d 253, explained that the Board's determination did not collaterally estop Barber from denying Jackson's application for General Municipal Law § 207-c benefits.

The Appellate Division also commented that substantial evidence supports the determination denying [Jackson] benefits noting that §207-c entitled correction officers to benefits when they are injured "in the performance of [their] duties" if they can establish the existence of a "'direct causal relationship between job duties and the resulting illness or injury.

An orthopaedic surgeon reviewed Jackson's medical records and conducted an independent medical examination of Jackson. The orthopaedic surgeon opined that, “to a reasonable degree of medical certainty, [Jackson']s plantar fasciitis was idiopathic.” Although Jackson introduced “contrary expert evidence,” the Appellate Division said that  the Hearing Officer "was entitled to weigh the conflicting medical opinions and determine which expert to credit."

The court held that as the orthopaedic surgeon "articulate[d] a rational and fact-based opinion founded upon a physical examination and review of the pertinent medical records," the Hearing Officer's reliance on such evidence was reasonable and, therefore, Jackson's application for §207-c benefits was properly denied.

* Plantar fasciitis, also known as plantar fasciosis or jogger's heel, is a disorder that results in pain in the heel and bottom of the foot.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08025.htm

_________________

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Volunteer fire association chief alleged to have taken fire association fuel for his personal use

Volunteer fire association chief alleged to have taken fire association fuel for his personal use

Source: Office of the State Comptroller

Click on text highlighted in color to access the audit report

Pennellville Volunteer Fireman’s Association (VFA) Fire Chief Duane Royal was charged with grand larceny Sunday, November 26, 2015, for allegedly stealing gas from the fire association for his private use according to an auditand investigation by State Comptroller Thomas P. DiNapoli.

Royal admitted to DiNapoli’s staff and the New York State Police that he gassed up at the VFA pump and used the VFA chief’s truck for his personal business as a process server.  He was charged with grand larceny in the fourth degree, a class E felony. DiNapoli’s staff also found that Royal was suspended for a month after selling the VFA truck for $3,000 without informing his colleagues.

The Comptroller’s auditconcluded that the Pennellville VFA failed to account for cash disbursements, that the treasurer lacked cash receipts for 261 deposits totaling $134,882, and that board members could not say whether music event-fundraisers benefited the VFA due to the lack of treasurer reports for four such events.

DiNapoli made 16 recommendations to the VFA board and Treasurer, including:

1. Strengthen internal controls with specific guidance for cash receipts and disbursements;

2. Train the treasurer to adequately perform his or her duties and require monthly reports on financial transactions;

3. Strengthen fuel purchase controls; and

4. Maintain detailed financial records related to cash transactions, fundraising events and loans to members.

VFA officials agreed with the Comptroller’s audit findings and stated that most have been implemented. Their response is included in the final audit report, which can be viewed on the Internet at: http://www.osc.state.ny.us/localgov/audits/firedists/2015/pennellville.pdf  

DiNapoli reported that his audits and investigations have led to more than 100 arrests and $20 million in money recovered since 2011. Since taking office in 2007, DiNapoli has been committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving taxpayer money may be reported by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

Prior case reports may be viewed on the Internet at: http://www.osc.state.ny.us/investigations/index.htm. 
 

A Freedom of Information request for records concerning law enforcement operations may be denied

A Freedom of Information request for records concerning law enforcement operations may be denied

Madeiros v New York State Educ. Dept., 2015 NY Slip Op 08028, Appellate Division, Third Department

Pamela A. Madeiros submitted a Freedom of Information Law [FOIL] request seeking the audit guidelines issued by the New York State Department of Education [SDE] and any communications that it had with municipalities or school districts "relating to the standards and procedures for, or relating to past, current or future fiscal audits of services or programs."

SDE denied the request in its entirety, stating that the documents were exempt from FOIL as records compiled for law enforcement purposes.* Ultimately SDE provided Madeiros  with 55 pages of redacted documents as a response to her FOIL request, maintaining that the redacted portions were exempt from disclosure pursuant to Public Officers Law §87(2)(e) and (g). 

Supreme Court rejected SDE efforts to invoke Public Officers Law §87(2)(g) with regard to two of the pages, but held that the undisclosed portions of the remaining documents were compiled for law enforcement purposes and were exempt from disclosure under Public Officers Law §87(2)(e)(i).

Madeiros’ appealed of the Supreme Court’s ruling but the Appellate Division, explaining that "FOIL is based on a presumption of access to the records, and an agency . . . carries the burden of demonstrating that the exemption applies to the FOIL request,." sustained the Supreme Court's ruling. In this instance, said the court, DOE had relied upon Public Officers Law §87(2)(e) with respect to providing redacted records a provision that exempts records from disclosure that "are compiled for law enforcement purposes and which, if disclosed, would . . . interfere with law enforcement investigations or judicial proceedings."**

Noting that Madeiros had obtained unredacted copies of almost 20 of the produced pages from another source, rendering academic a good portion of the relief she seeks, certain records, including an internal control questionnaire, the Appellate Division said that the redacted portions of the documents demanded by Madeiros to be supplied by DOE would, indeed, reveal to “unscrupulous [providers] the path that an audit is likely to take and alert them to items to which investigators are instructed to pay particular attention,” agreeing with Supreme Court that such documents  constituted "compilations of investigative techniques exempt from disclosure."

* The release of some public records is 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.

** DOE had contended that the redactions were necessary because disclosure of the unredacted documents would reveal auditing techniques that would enable the providers of preschool special education programs to conceal their financial misdeeds more effectively.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08028.htm

Employees of Suffolk County Community College held ineligible to participate in the County’s Deferred Compensation Plan

Employees of Suffolk County Community College held ineligible to participate in the County’s Deferred Compensation Plan

Suffolk County Assn. of Mun. Empls., Inc. v Levy, 2015 NY Slip Op 08180, Appellate Division, Second Department

Suffolk County Assn. of Mun. Empls., Inc. v Levy, 2015 NY Slip Op 08181, Appellate Division, Second Department

A number of individuals employed by the Suffolk Community College represented by Suffolk County Association of Municipal Employees [SCAME], an employee organization representing employees of Suffolk County including those at the College, had been permitted to participate in the Suffolk County Public Employees Deferred Compensation Plan [County Plan].

The County Planis administered by the Suffolk County Deferred Compensation Board [County Board] and in 2009 the County and the College entered into a Sponsor Service Agreement and a Memorandum of Understanding of Procedures that provided that the College and the County are independent entities and that neither entity's employees are to be deemed employees of the other entity.

The County Board then asked New York State Deferred Compensation Board [State Board] if the College's employees were eligible to continue to participate in the County Plan in view of the terms of the 2009 Memorandum of Understanding deeming them to be employed by an entity other than the County. The State Board determined, primarily based upon the terms of the New Operating Agreement, that the County and the College were separate and distinct employers and, therefore, the College's employees could no longer participate in the County Plan.*

The County Board adopted the State Board's determination and, in a letter dated March 29, 2010, informed the College's employees that they could no longer participate in the County Plan.

SCAMEchallenged the County Board's determination that the County and the College were separate employers and, thus, the College's employees could no longer participate in the County Plan. Supreme Court dismissed SCAME's CPLR Article 78 petition and the employee organization appealed.

The Appellate Division sustained the Supreme Court’s ruling. The Appellate Division explained that “contrary to [SCAME’s] contentions, the challenged determination that the County and the College are separate employers and, therefore, the College's employees could no longer participate in the County Plan, had a rational basis and was not arbitrary and capricious or an abuse of discretion. Accordingly, said the court, the Supreme Court properly denied the petition and dismissed the proceeding.

* The State Board cited §457 of the Internal Revenue Code as the authority for establishing the Suffolk County Public Employees Deferred Compensation Plan. It should be noted, however, that Article 8-C of the Education Law [§§398-399-A], SPECIAL ANNUITY, also referred to as a “tax-deferred annuity plan,” permits an individual employed by “the state university, the board of higher education of the city of New York, or a community college established and operated under article one hundred twenty-six of this chapter to participate in a tax-deferred annuity plan as permitted under §403(b) of the United States Internal Revenue Code” should such an entity “elect to establish by resolution special annuity and custodial account programs which shall provide for the purchase of contracts or establishment of custodial accounts providing retirement and death benefits for or on behalf of employees electing to enter into an agreement with such employer providing for a reduction of annual salary for the purpose of purchasing such contracts or for making contributions to such custodial accounts.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08180.htm