An autopsy of a Freedom of Information request

An autopsy of a Freedom of Information request
Gartner v New York State Attorney General's Off., 2018 NY Slip Op 02381, Appellate Division, Third Department

New York State's Freedom of Information Law [FOIL] is based on the concept that all government records and document should be available to the public except where such disclosure is prohibited by law.* Indeed, there is no bar to providing information pursuant to a FOIL request, or otherwise, that could be denied pursuant to one or more of the exceptions set out in FOIL that the custodian could rely upon in denying a FOIL request, in whole or in part. 

Further, a formal FOIL request is not required as a condition precedent to obtaining public documents or 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 formal FOIL request to obtain the desired information or records. 

Barbara Gartnersubmitted a Freedom of Information [FOIL] request to the Office of the New York State Attorney General [OAG] seeking certain information.. The OAG told Ms. Gartner that it had located 505 pages that were responsive to her FOIL request and specified the cost and method of obtaining those documents.

Ms. Gartner sent a check in the amount specified but OAG then informed her that "due to a change in circumstances" in related litigation "the 505 pages that were identified for disclosure were now being withheld as exempt." In response to her administrative appeal challenging this decision, it was determined that Ms. Gartner was entitled to the 195 pages of documents that were already publicly available on the Attorney General's website and five pages of partial redacted documents but  OAG could withhold the remaining pages.*

A few months later, following resolution of the relevant litigation, Ms. Gartner resubmitted her FOIL request. OAG denied the request, concluding that all documents were exempt. Following the denial of her administrative appeal of this decision, Ms. Gartner initiated a CPLR Article 78 proceeding challenging that denial. The parties negotiated a settlement in which Ms. Gartner agreed to withdraw her petition without prejudice in exchange for the disclosure of 305 of the 310 pages that were not already publicly available. As part of the settlement, the Attorney General's Office confirmed that the 505 pages that had previously been identified as responsive represented "the entire universe of documents that respond to the subject FOIL request."

Ms. Gartner reviewed the 305 pages she had received and then realized that they referenced other documents that she had not received. She then commenced this second CPLR Article 78 proceeding seeking an order compelling OAG to conduct a diligent search for responsive documents, permitting her or an independent third party to examine the files maintained by OAG to determine whether they provided all of the responsive documents, compelling OAG to disclose all records withheld or redacted or submit them for an in camera review by the court, and awarding her counsel fees.

OAG then voluntarily supplied unredacted copies of all pages that had previously been disclosed and the remaining five pages of the original 505 pages and subsequently provided Ms. Gartner with 56 additional pages. OAG then provided the court with 949 additional pages that they withheld based on claimed exemptions for intra-agency materials, inter-agency materials and attorney work product for its review in camera together with an affidavit listing which exemption applied to each group of pages.

Supreme Court concluded that the 949 pages were properly withheld under the stated exemptions, but awarded Ms. Gartner  counsel fees based on the way that OAG "had handled the FOIL request." Ms. Gartner appealed the court's decision.

Addressing Ms. Gartner contentions that OAG "must be ordered to conduct a further diligent search for responsive records, provide a new certification of a diligent search and/or allow petitioner or an independent party to conduct such a search" the Appellate Division said:

1. "When 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".

2. Supreme Court did not err in determining that OAG had conducted and certified a diligent search, as required.

3. There is no legal authority to allow a petitioner or independent third party to conduct a search of an agency's records to locate responsive documents and such a search would be improper because it would inevitably permit the person to view agency records that were not responsive or that were exempt from disclosure.

As to the propriety of OAG withholding of document, FOIL presumes that government documents are available for inspection and copying unless they are statutorily exempt by Public Officers Law §87(2). The Appellate Division then addressed the authority of the custodian of the documents demanded to withholding them, noting that the agency resisting disclosure under FOIL bears the burden of showing that the responsive document "falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access.

With respect to OAG's reliance on the exemptions for intra-agency and inter-agency materials and attorney work product the court explained that "An exemption from FOIL disclosure exists for intra-agency and inter-agency materials, but there are exceptions — meaning that disclosure is permitted — if the document consists of, among other things, 'statistical or factual tabulations or data' [and] Factual data . . . simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making."

Upon the Appellate Division's in camerainspection of the documents, it concluded that "most of the pages alleged to be intra-agency materials are exempt because they contain ideas or opinions exchanged between employees of the Attorney General's Office." However, continued the Appellate Division "the documents on pages 1 and 286 contain factual information without any opinion, rendering them nonexempt" while certain other documents are not exempt because they deal with the scheduling of meetings, rather than any deliberative process."

OAG also claimed that FOIL exempts intra-agency materials applies to inter-agency materials and communications shared between different government agencies to assist a decision maker in one agency in reaching a determination, the communications between the OAG and counsel for another State Agency. Pointing out that OAG and agency counsel were "not interacting with the Attorney General's Office in that capacity," nor was it assisting the government entity but rather OAG was more akin to a separate party to the litigation than an advisor to the government entity.

The court then ruled that considering these circumstances and the positions of the parties in these interactions, the inter-agency exemption does not apply and will not preclude disclosure of communications between these entities and thus the documents OAG alleged fell within this FOIL exemption are subject to disclosure.

With respect to OAG's arguments found on its assertion that numerous documents are exempt from disclosure because they represent attorney work product the court agreed that Public Officers Law §87(2)(a) exempts from FOIL disclosure any materials "specifically exempted from disclosure by state or federal statute" privileged communications between attorneys and their clients exchanged in the course of obtaining legal advice or services. However, observed the Appellate Division, not every word written by a lawyer "enjoys the absolute immunity of work product" and "the exemption should be limited to those materials which are uniquely the product of a lawyer's learning and professional skills, such as materials which reflect his or her legal research, analysis, conclusions, legal theory or strategy."

Nor may OAG claim the attorney work product privilege for work done by a private law firm on behalf of a non-government client which documents were then sent to the OAG as the confidentiality and the related privilege is waived by intentionally sending the documents to a third party.

The Appellate Division concluded that OAG had failed to meet its burden of establishing that the relevant pages — "drafts of legal documents and the letters and emails sent to and from counsel for any party to the various court proceedings" and Ms. Gartner is entitled to disclosure of those pages. In contrast, said the court, "the handwritten notes prepared by an Assistant Attorney General, and apparently never shared with anyone outside that office, are exempt as attorney work product."

* Education Law, §1127 - [Confidentiality of records] and §33.13, Mental Hygiene Law [Clinical records; confidentiality] are examples of such statutory prohibitions. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02381.htm

Retired State employee, after admitting to "double dipping," required to make total restitution in the amount of $156,918.20

Retired State employee, after admitting to "double dipping," required to make total restitution in the amount of $156,918.20

Source: Office of the State Comptroller

On April 3, 2018 New York State Comptroller Thomas P. DiNapoli  reported that Diane M. Cecero admitted she had been unlawfully “double-dipping" thereby receiving state retirement benefits to which she was not entitled while employed by a political subdivision of the State. The practice of drawing retirement benefits while remaining a public employee is informally known as “double-dipping,” and is prohibited by §150 of the Civil Service subject to a few exceptions, none of which exceptions applied to Ms. Cecero.

State Comptroller Thomas P. DiNapoli said that Ms. Cecero had unlawfully taken $85,000 in state pension benefits in addition to her six figure salary as an employee of a SUNY community college and that Ms. Cecero had agreed to pay back those benefits, with interest, as part of a pretrial diversion agreement.

Ms. Cecero had been a State employee from 1982 until 1996 and had been earning retirement credits as a participant in the New York State and Local Retirement System [NYSLRS]. In 1996 she joined the staff of the community college and, although she was then receiving retirement benefits from NYSLRS, she joined the State University Optional Retirement Program. [ORP].

However, Education Law §390.3, in pertinent part, provides that "No person receiving a benefit by reason of his or her retirement from any retirement or pension system of New York state or any political subdivision thereof shall be eligible to elect the optional retirement program."*

Ms. Cecero admitted that while employed by the community college [1] she had falsely filled out an Application for Service Retirement dated April 3, 2008, which resulted in NYSLRS paying her approximately $85,000 in retirement benefits to which she was not entitled during the years 2008 through 2014 and [2] she that while drawing retirement benefits from NYSLRS, she also participated in SUNY ORP. In addition, the community college had contributed more than $100,000 to the ORP for her benefit during this period.

The United States Attorney’s Office filed a wire fraud charge against Ms. Cecero. As part of the pretrial diversion agreement, it agreed that it would dismiss the charge if, within 18 months, Ms. Cecero made total restitution of $156,918.20: $116,918.20 to NYSLRS and an additional $40,000 to the community college. As part of the agreement, "Ms. Cecero did not admit to committing fraud or to any criminal wrongdoing."

This case was investigated by the Office of the State Comptroller, Division of Investigations, and was prosecuted by Assistant U.S. Attorneys Michael Barnett and Cyrus P.W. Rieck.

* ORP is not a public retirement system of the State and the public employer not liable for payment of benefits within the meaning of Article V, Section 7, of the State Constitution in that §396 of the Education Law provides that "Neither the state, nor state university, nor any electing employer or its local sponsor shall be a party to any contract purchased in whole or in part with contributions made under the optional retirement program established and administered pursuant to this article. No retirement, death, or other benefits shall be payable by the state, or by state university, or by any electing employer or its local sponsor under such optional retirement program. Such benefits shall be paid to electing employees or their beneficiaries by the designated insurer or insurers in accordance with the terms of their contracts."

Perfecting an action or special proceeding against a political subdivision of the State or other entities may require the filing of a timely notice of claim

Perfecting an action or special proceeding against a political subdivision of the State or other entities may require the filing of a timely notice of claim

Mirro v City of New York, 2018 NY Slip Op 02154, Appellate Division, Second Department 

A timely filing of a "notice of claim" may be a condition precident to maintaining and an action or special proceeding against a political subdivision of the State. General Municipal Law §50-i, for example, provides, in pertinent part, that "No action or special proceeding shall be prosecuted or maintained against a city, county, town, village, fire district or school district for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city, county, town, village, fire district or school district or of any officer, agent or employee thereof, including volunteer firemen of any such city, county, town, village, fire district or school district or any volunteer fireman whose services have been accepted pursuant to the provisions of section two hundred nine-i of this chapter, unless, (a) a notice of claim shall have been made and served upon the city, county, town, village, fire district or school district in compliance with section fifty-e of this article.*"

New York courts, however, have recognized a "public interest exception" to this notice requirement as was an element in the plaintiff maintaining certain branches of her cause of action in Mirro v City of New York.

The plaintiff in this action, Michele Mirro, was employed by the New York City Department of Consumer Affairs [DCA]. She commenced a lawsuit against the City, DCA, and four DCA employees in which she set out causes of action to recover damages for alleged violations of her rights to free speech and to petition under the New York State Constitution, Article I, §§8-9, and discrimination on the basis of age in violation of the New York City Human Rights Law.

Supreme Court granted certain of DCA's motions and denied certain of Mirro's cross motions. Mirro appealed these rulings by Supreme Court.

The Appellate Division, noting that Mirro failed to serve a notice of claim, said this was a fatal omission and "requires dismissal of the cause of action alleging violations of the State Constitution." Rejecting Mirro's argument to the contrary, the court said that this branch of her complaint "does not fall within the public interest exception to the notice of claim requirement," as Mirro was seeking to vindicate her private rights and the disposition of those claim will not directly affect or vindicate the rights of others.

In addition, the court observed that Mirro's complaint named the individual DCA defendants in her complaint "in their individual capacities," alleging she suffered retaliation by them as part of their employment, and, thus, the notice of claim requirement applied to these claims as well.

In contrast, the Appellate Division ruled that Supreme Court erred in granting DCA's motion to dismiss Mirro's cause of action alleging age discrimination within the meaning of New York City's Human Rights Law. The court explained that Mirro's alleged disparate treatment of older employees, including herself, and that disciplinary charges that had been served upon her were based, in part, on age discrimination, sufficiently stated a cause of action to recover for age discrimination pursuant to the New York City's Human Right Law.

With respect to the exception to the notice requirement in cases that involved 1. an issue of vindication a public interest [Doyle v Deer Park Union Free School District, 230 A.D.2d 820] and 2. a case in which a collective bargaining agreement between the parties, Civil Service Employees' Association v Lakeland Central School District, 230 A.D.2d 703, was found to constitute a waiver of the notice of claim provision of law. These decision illustrate how the courts evaluate these exceptions.

In Doyle v Deer Park Union Free School District educator Velia Doyle and a number of other teachers sued Deer Park alleging it had unlawfully discriminated against them. The educators contended that the District had violated §296 of the Executive Law, the State's Human Rights Law, prohibiting age discrimination.

Doyle alleged that the District's discriminatory acts resulted in her, and the other teachers, losing certain retirement benefits.

The basic question before the Appellate Division was whether Doyle's claim involved the vindication of an issue of public interest. The court decided Doyle's action did not involve any public interest. Rather, the essential element in the action was a private interest -- damages for lost retirement benefits Doyle claimed were due to her and her co-teachers. Accordingly, her failure to file a timely notice of claim could not be excused on the grounds that she was seeking to vindicate a public interest.

Because Doyle and other teachers who had joined her in the action did not satisfy the filing requirements set out in Education Law §3813(1), the Appellate Division concluded that the lower court had properly dismissed the action as it was "barred insofar as asserted against the Board of Education."

In Civil Service Employees' Association v Lakeland Central School District, Lakeland moved to dismiss the Association's action on the grounds that CSEA failed to file a timely §3813 notice of claim.

The District's motion to dismiss was denied by a New York State Supreme Court judge. When the District appealed, the Appellate Division affirmed the lower court's ruling. The Appellate Division explained that CSEA was not required to comply with Education Law §3813's requirements because the collective bargaining agreement contained a detailed grievance procedure waiving CSEA's duty to comply with that statutory requirement.

Although exceptions to the three-month requirement exist, it would seem prudent to file a timely notice of claim as set out in "notice statutes" such General Municipal Law §50-e, §50-i, and Education Law §3813 rather than attempt to persuade a court that it was not necessary to do so in a particular situation.

* Other "notice of claim" provisions are set out in law such as those mandated by Education Law §3813 and General Municipal Law §50-e. §50-e, however, excludes claims arising under the provisions of the Workers' Compensation Law, the Volunteer Firefighters' Benefit Law, and the Volunteer Ambulance Workers' Benefit Law, together with claims filed against public corporations by their own infant wards, from such notice of claim requirements.

The Mirro decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02154.htm

New appointments to New York State Governor Cuomo's administration

New appointments to New York State Governor Cuomo's administration

Source: Office of the Governor

On April 2, 2018, Governor Andrew M. Cuomo today announced the following new appointments to his administration.

  

Lindsey Boylan has been appointed Deputy Secretary for Economic Development and Special Advisor to the Governor. She previously served as Chief of Staff and Executive Vice President at Empire State Development. Prior to joining the agency, Lindsey spent several years in municipal finance, ultimately as Vice President, at RBC Capital Markets. Earlier, she served in an executive role steering operations and business development for three interconnected New York City business improvement districts, public-private partnerships best known for their restoration of Midtown's iconic Bryant Park. Lindsey also worked for noted urban planner Alexander Garvin, focusing on a master planning and management process for a 4,500-acre park in Memphis, Tennessee. She is a graduate of Columbia Business School and received her B.A. in Political Science from Wellesley College, where she was elected Student Body President. 

 

Michael Schmidt has been appointed Senior Economic Advisor to the Governor. Mr. Schmidt most recently served as Deputy Secretary for Economic Development, where he oversaw policy and operations for twelve state agencies and authorities, including Empire State Development, the Department of Taxation and Finance, the Division of Homes and Community Renewal, and the Department of State. Previously, Mr. Schmidt served as economic policy advisor to Hillary Clinton during in her 2016 presidential campaign, where he led the development of Secretary Clinton's agenda on financial regulation, trade, infrastructure, housing, small business, and economic development. He has also served in the Office of Domestic Finance at the U.S. Department of the Treasury and as a Senior Financial Analyst at the Yale Investments Office. He holds a J.D. and a B.A from Yale.

 

Zackary Knaub has been appointed First Assistant Counsel to the Governor. Mr. Knaub most recently served as Assistant Counsel to the Governor, handling energy and environmental matters. Before joining the Executive Chamber, Mr. Knaub served as Regional Attorney for the Department of Environmental Conservation, managing the Department's legal affairs for the lower Hudson River Valley. Prior to his state service, he was a partner in the Shlansky Law Group, a boutique commercial and environmental litigation law firm, and an associate in the New York City office of Beveridge & Diamond, P.C. He began his legal career as a pro se and motions law clerk for the United States Court of Appeals for the Second Circuit. He graduated cum laude from Cardozo Law School, and holds a M.A. from Columbia University, and a B.A. with honors from the University of Iowa.

 

Carolyn Pokorny has been appointed Special Counsel for Public Integrity. She most recently served as Chief Special Counsel for Ethics, Risk and Compliance. Previously, she served as Deputy Chief of Staff and Counselor to U.S. Attorney General Loretta E. Lynch. Prior, she spent nearly fifteen years with the U.S. Attorney's Office in Brooklyn, where she held a number of leadership positions, including Deputy Chief of the Criminal Division. She received the U.S. Attorney General's Award for Distinguished Service, and the Federal Prosecutor of the Year award from the Federal Law Enforcement Foundation. Ms. Pokorny began her career as a prosecutor in the Bronx District Attorney's Office and then clerked for federal judge Arthur D. Spatt on Long Island. She has a B.A. from New York University, and a J.D. from Brooklyn Law School.

 

Camille Joseph Varlack has been appointed Deputy Director of State Operations. In 2017, she was appointed New York State Chief Risk Officer and Special Counsel and will retain those titles. Ms. Varlack has served as deputy director for ethics, risk and compliance in the Executive Chamber and as a principal law clerk for the New York State Supreme Court. She has also served as Assistant Vice President and Counsel at AXA Financial, Inc. and as an Assistant District Attorney for the Kings County District Attorney's Office. Ms. Varlack holds a B.A. from the State University of New York at Buffalo and a J.D. from Brooklyn Law School.

 

Giancarlo Pellegrini has been appointed Assistant Counsel to the Governor. Mr. Pellegrini most recently practiced law at Sidley Austin LLP in Washington, D.C., and he previously served as an Empire State Fellow in the Governor's Counsel's Office. Mr. Pellegrini holds a J.D. from Harvard Law School and a B.A. from Lehigh University. 

 

Andrew Chan Wolinsky has been appointed Assistant Special Counsel for Public Integrity. Previously, he was an associate in the litigation departments of Sullivan & Cromwell LLP and Davis Polk & Wardwell LLP, where his practice focused on white-collar criminal defense, regulatory enforcement proceedings, and internal investigations. He clerked for the Honorable Jane R. Roth of the United States Court of Appeals for the Third Circuit and the Honorable Loretta A. Preska, Chief Judge of the United States District Court for the Southern District of New York. Mr. Wolinsky earned his J.D. from Fordham University School of Law and his B.A. from Tufts University. 

 

Abigail Belknap Seidner has been appointed Assistant Special Counsel for Public Integrity in the Executive Chamber. Prior to entering public service, Ms. Seidner began her legal career at Cooley LLP, where she represented numerous pro bonoclients in addition to her private litigation practice. Ms. Seidner previously served as a legal intern in the U.S. Attorney's Offices for both the Southern and Eastern Districts of New York and at the New York Civil Liberties Union. Ms. Seidner holds a B.A. from Pomona College and a J.D. from New York University School of Law.

 

Michael Donegan has been appointed General Counsel at the Justice Center for the Protection of People with Special Needs.  Mr. Donegan has been with the Justice Center since August of 2013, where he was appointed as the first Director of the Employee Discipline Unit, supervising a staff of attorneys who represented state oversight agencies at disciplinary arbitrations. Prior to coming to the Justice Center, Mr. Donegan served 16 years as the General Counsel at the State Commission of Correction. He is a graduate of SUNY Albany and Hofstra University School of Law.

 

Mark Noordsy has been appointed General Counsel and Deputy Commissioner at the Office of Mental Health. He most recently served as Deputy Counsel for Litigation at OMH. Previously, he served at the New York State Department of Health, and Office of the Medicaid Inspector General, after twenty-eight years of private practice. Mr. Noordsy received a B.A., magna cum laude, from St. Lawrence University, and a J.D., with honors, from George Washington University.

 

Karen Mintzer has been appointed General Counsel at the New York State Office of Parks, Recreation and Historic Preservation. Ms. Mintzer joined Parks from the New York State Department of Environmental Conservation, where she served as Regional Attorney - General Counsel for Region 2 (New York City). Previously, she was in private practice, most recently as special counsel at Kramer Levin Naftalis & Frankel. She holds a B.A. from Lafayette College and a J.D. from Georgetown University Law Center.   

 

Sumit Sud has been appointed Deputy Chief Special Counsel for Ethics, Risk and Compliance. In this new role, Mr. Sud will coordinate the statewide program for ethics, risk and compliance across agencies and authorities, working with the Special Counsel for Public Integrity and New York State's Chief Risk Officer. He will assume this role while continuing to act on his previous appointments as Special Counsel to the Director for the New York State Insurance Fund and the Commissioner to the New York Department of Labor. Prior to joining the state, Mr. Sud served as Senior Counsel at the New York City Law Department, where he had been for almost ten years. He holds a J.D. from Case Western Reserve University in Ohio and a B.S. from the University of Washington, Seattle. 

Diversity Management

Diversity Management

The New York State Department of Civil Service has issued General Information Bulletin (GIB) GIB 18-01, Use of the Diversity Management Option for the Professional Career Opportunities (PCO) Exam.

Text of General Information Bulletin 18-01 will be found at:

https://www.cs.ny.gov/ssd/Manuals/SPMM/GIBS/GIB18-01.cfm

If you wish to print General Information Bulletin 18-01, we offer a version in pdf format at:

https://www.cs.ny.gov/ssd/pdf/GIB18-01.pdf