Records of a private entity created for the benefit of a public entity may constitute public records subject to FOIL under certain circumstances

Article 6 of the Public Officers Law, commonly referred to as the "Freedom of Information Law [FOIL], requires that an entity subject to its provisions make available for public inspection and copying all its records unless the requested records are statutorily exempt from disclosure. FOIL, however, does not require an entity "to prepare any record not possessed or maintained by such entity" and an entity "may deny a FOIL request upon providing certification that it does not have possession of the requested record or, following a diligent search, that the record cannot be found."

Plaintiff in the CPLR Article 78 action had filed a FOIL request with a public entity [Respondent] seeking various records concerning various apprenticeship training programs sponsored by a union local's [Union] "Joint Apprenticeship Training Fund" for a particular period of time. Respondent granted Plaintiff's request to the extent that it disclosed 425 pages of records within its possession but denied Plaintiff's request for certain records and for "[any] and all documents used or provided to enrollees in each of the programs for training or any other classroom activities related to training."

Plaintiff administratively appealed. Respondent's FOIL appeal officer issued a final determination finding, among other things, that the denial of certain was proper on the ground that Respondent did not maintain those documents. Plaintiff then commenced the instant Article 78 proceeding seeking a court order annulling Respondent's determination. 

Supreme Court partially granted Plaintiff's petition in part, annulling that part of the agency determination as denied Plaintiff's request with respect to certain documents, holsinf that they were subject to disclosure, and Respondent appealed.

The Appellate Division observed that:

1. It is the public policy of this state to develop sound apprenticeship training standards and to encourage industry and labor to institute apprenticeship training programs in order to develop skilled crafts people in New York State's labor force;

2. The Commissioner of Labor [Labor] is responsible for supervising these apprenticeship programs and has established and implemented procedures and standards for the approval and registration of such programs;

3. Pursuant thereto Labor procedures, private entities interested in providing apprenticeship programs[Sponsors] are required to, among other things, register with respondent, "keep adequate records relative to all phases of the operation of the program, including but not limited to job assignments, promotion, demotion, lay-off or termination, rates of pay or other form of compensation or conditions of work, and any other records pertinent to a determination of compliance with the relevant State law and 12 NYCRR.

4. A Sponsor must also submit such records "as may be required by 12 NYCRR 601.5[c][19]".

Addressing the Respondent's argument that the records sought by Plaintiff were created and maintained by the Union in order for it to demonstrate its compliance with Labor Law Article 23 and Respondent's corresponding regulations, the Appellate Division concluded that the question "distills to whether records that are maintained by a private entity for purposes of demonstrating regulatory compliance constitute records held 'for an agency' so as to be subject to disclosure under FOIL."

The Appellate Division opined that "where a state agency delegates a duty to perform an essential service to a private, third-party entity for the agency's benefit," the documents in the possession of the private entity for those purposes are considered to be "kept or held" for the agency and subject to disclosure under FOIL. 

In contrast, observed the court, where a public entity did not delegate such a duty to a private entity nor did the private entity perform any essential service on public entity's behalf, "the mere fact that[the public entity] has the discretionary regulatory authority to ask the [private entity] for the requested documents does not, ipso facto, render all documents that are created and maintained by the [private entity] subject to disclosure" pursuant to FOIL. 

Indeed, opined the Appellate Division, "... to so hold would render any document that was created or maintained by a private entity in order to comply with a corresponding agency regulation requiring the production and retention thereof a 'record' subject to disclosure under FOIL."

Recognizing that "FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government," in this instance the Appellate Division said it did not find "the definition of 'record' to be so broad and all-encompassing as to bring within its ambit any document that a private entity might create and maintain pursuant to a state agency's regulation under the guise that said records are held 'for' that agency" within the meaning of Public Officers Law §§86[4]; 87[2]; 89[3] [a]; Labor Law §§810, 813-a; [or] 12 NYCRR 601.1, 601.8 [c], [or] 601.14."

Accordingly, the Appellate Division held that Supreme Court should not have granted that part of the Plaintiff's petition as sought to require the Respondent to obtain and disclose the requested documents.

Click HERE to access the Appellate Division's decision.

Applying the doctrines of res judicata and collateral estoppel to prevent repetitious litigation of disputes which are essentially the same

In this proceeding pursuant to CPLR Article 78 the Appellate Division reviewed a determination of the Respondent finding a substantiated allegation of physical abuse of a patient by the employee [Petitioner].

Respondent had received a report that Petitioner had abused or neglected an individual under his care. Following an investigation, Respondent found the report of physical abuse to be substantiated as a category three offense and denied subsequent request to amend Respondent's report to unsubstantiated and the matter was referred for a hearing before an Administrative Law Judge [ALJ].

In addition, the Appointing Authority [Employer] served Petitioner with a notice of discipline charging him with seven specifications of misconduct and/or incompetence in connection with this incident.

Pursuant to a collective bargaining agreement in effect between Employer and Petitioner's union, a disciplinary hearing was conducted before an arbitrator [Arbitrator] in December at which Employer was represented by Respondent. In January 2020, the Arbitratorissued a written decision finding Petitioner guilty of certain charges and acting unprofessionally and failing to comport himself as a supervisor, but charges specifically finding that Petitioner's other act of alleged physical abuse were "not deemed to be physical abuse" of the service recipient. The Arbitrator then imposed a penalty of a 10-day suspension without pay.

After the disciplinary arbitration hearing had occurred but prior to the Arbitratorrendering his decision, a hearing was held before the ALJ on Petitioner's request to amend the "abuse finding." During the course of this hearing, Petitioner's attorney informed the ALJ of the parallel arbitration hearing and, after the hearing before the ALJ concluded, notified the ALJ of the Arbitrator's January 2020 decision and contended that "under principles of res judicata and collateral estoppel, the finding of physical abuse should be amended to unsubstantiated."

Ultimately the ALJ issued a recommended decision, concluding that the Arbitrator's decision was not entitled to preclusive effect and that the Employer had established by a preponderance of the evidence that Petitioner had committed the physical abuse alleged. Respondent subsequently issued a final determination incorporating the ALJ's recommended decision in its entirety.

Petitioner then commenced this CPLR article 78 proceeding seeking to annul the Respondent's determination, contending that the ALJ was precluded from rendering a decision under the doctrines of res judicataand collateral estoppel and that the determination was not supported by substantial evidence.

The Appellate Division agreed with Petitioner that the ALJ "erred in not giving preclusive effect to the Arbitrator's determination that [Petitioner's] conduct did not constitute physical abuse.

The court explained that "The underlying purpose of the doctrines of res judicata and collateral estoppel is to prevent repetitious litigation of disputes which are essentially the same," citing Matter of Anonymous v New York State Justice Ctr. for the Protection of People with Special Needs, 174 AD3d 1007.

The Appellate Division noted that Respondent did not dispute that it was in privity with Employer via its representation of Employer in the arbitration proceeding and, as such, had a full and fair opportunity to litigate before Arbitrator. Rather, Respondent contended that the issue decided by the Arbitrator was not the identical issue before the ALJ. The Appellate Division said that it found Respondent's argument in this regard "unpersuasive."

Pointing out that the Arbitrator and the ALJ both reviewed the same videos of the underlying incident and Petitioner's interview, the Appellate Division fund that while both the Arbitrator and the ALJ both agreed that Petitioner had restrained the service recipient, the Arbitrator concluded that Petitioner's conduct did not constitute physical abuse, the same factual issue the ALJ later confronted.

The Appellate Division found that the ALJ "was precluded under the doctrine of collateral estoppel" from rendering a later contrary determination as to whether [Petitioner] physically abused the service recipient in the course of the incident. Accordingly, the court granted Petitioner's application, annulled the Respondent's determination and remitted the matter to Respondent "for the purpose of amending the findings to indicate the report as unsubstantiated."

Click HERE to access the Appellate Division's decision. 

 

Candidate for election to public office held to have participated in acts warranting the invalidation of his designating petition

In a proceeding brought pursuant to Article 16 of New York State's Election Law, Supreme Court granted the Plaintiff's petition and invalidated the designating petition of an individual [Respondent] seeking election to public office. Respondent appealed but the Appellate Division affirmed the Supreme Court's order.

Addressing the merits of Respondent's appeal, the Appellate Division held that Supreme Court properly invalidated Respondent's designating petition on the basis of fraud.

The Appellate Division explained that "As a general rule, a candidate's designating petition will be invalidated on the ground of fraud only if there is a showing that the entire designating petition is permeated with that fraud. However, said the court, even if the designating petition is not permeated with fraud, if the candidate has participated in or is chargeable with knowledge of the fraud, the designating petition will generally be invalidated.

Here, opined the Appellate Division, Plaintiff established "by clear and convincing evidence" that Respondent, as a subscribing witness:

[1] attested that he had witnessed certain signatures on the designating petition even though third parties had signed the petition on behalf of the person named as the signatory on the designating petition; and 

[2] had attested to one signature although he was not "in the presence of the signator[y] when [she] signed the [designating] petition."

Although the Appellate Division stated it did not "ascribe any nefarious motive to [Respondent's] conduct, his actions still constituted a fraud."

Accordingly, it held that Supreme Court "properly determined that [Respondent's] participation in those acts warranted invalidation of the designating petition."

Click HERE to access the Appellate Division's decision. 

 

NYCRR Title 21

New York Codes, Rules and Regulations [NYCRR], provided by Thomas Reuters Westlaw, includes those of Authorities, Agencies,  Boards, Commissions, Committees, Corporations, Foundations, Funds, Retirement Systems and Trusts in Title 21. The Internet links to "21 CRR-NY" are set out below.

• 21 CRR-NY Notice
• Chapter I Waterfront Commission of New York Harbor
• Chapter II Board of Commissioners of Pilots
• Chapter III New York State Thruway Authority
• Chapter IV Syracuse Regional Airport Authority
• Chapter V New York State Bridge Authority
• Chapter VI New York Temporary State Commission on Lobbying
• Chapter VII Nassau County Bridge Authority(Atlantic Beach Bridge)
• Chapter VIII New York Job Development Authority
• Chapter IX New York State Economic Development Power Allocation Board
• Chapter X Power Authority of the State of New York
• Chapter XI New York State Energy Research and Development Authority
• Chapter XII Interstate Environmental Commission
• Chapter XIII Buffalo and Fort Erie Public Bridge Authority
• Chapter XIV Lake Champlain Bridge Commission
• Chapter XV New York State Commission of Investigation
• Chapter XVI Hudson River Park Trust
• Chapter XVII Albany Port District Commission
• Chapter XVIII Delaware River Basin Commission
• Chapter XIX New York City Educational Construction Fund
• Chapter XX Niagara Falls Bridge Commission
• Chapter XXI Metropolitan Transportation Authority
• Chapter XXII State Temporary Commission to Revise the Social Services Law
• Chapter XXIII Niagara Frontier Transportation Authority
• Chapter XXIV The Port Authority of New York and New Jersey
• Chapter XXV Committee on Open Government
• Chapter XXVI Capital District Transportation Authority
• Chapter XXVII State University Construction Fund
• Chapter XXVIII New York Temporary State Commission on Constitutional Tax Limitations
• Chapter XXIX Susquehanna River Basin Commission
• Chapter XXX Niagara Falls Water Board
• Chapter XXXII Facilities Development Corporation
• Chapter XXXIII United Nations Development Corporation
• Chapter XXXV New York State Housing Finance Agency
• Chapter XXXVII State of New York Mortgage Agency
• Chapter XXXVIII New York State Project Finance Agency
• Chapter XXXIX Central Pine Barrens Joint Planning and Policy Commission
• Chapter XL Emergency Financial Control Board
• Chapter XLI Jones Beach State Parkway Authority
• Chapter XLII New York State Environmental Facilities Corporation
• Chapter XLIII New York State Public Authorities Control Board
• Chapter XLIV [Reserved]
• Chapter XLV Auburn Industrial Development Authority
• Chapter XLVI Onondaga County Water Authority
• Chapter XLVII State Mediation Board
• Chapter XLVIII Genesee County Industrial Development Agency
• Chapter XLIX State Commission on Uniform State Laws
• Chapter L New York State Urban Development Corporation
• Chapter LI City of Oneida Industrial Development Agency
• Chapter LIII Roosevelt Island Operating Corporation
• Chapter LV Dormitory Authority
• Chapter LVI Temporary State Commission on the Real Property Tax
• Chapter LVII Rochester-Genesee Regional Transportation Authority
• Chapter LVIII New York State Teachers' Retirement System
• Chapter LIX Tug Hill Commission
• Chapter LX New York State 911 Board
• Chapter LXI Capital District Transportation Authority
• Chapter LXII The Municipal Assistance Corporation for the City of New York
• Chapter LXIII Thousand Islands Bridge Authority
• Chapter LXIV New York State Mortgage Loan Enforcement and Administration Corporation
• Chapter LXV Ogdensburg Bridge and Port Authority
• Chapter LXVI New York Convention Center Operating Corporation
• Chapter LXVII New York State Science and Technology Foundation
• Chapter LXVIII New York State Committee on Sentencing Guidelines
• Chapter LXIX Interest on Lawyer Account Fund
• Chapter LXX New York City Housing Development Corporation
• Chapter LXXI Battery Park City Authority
• Chapter LXXII Natural Heritage Trust
• Chapter LXXIV New York City School Construction Authority
• Chapter LXXV New York City Municipal Water Finance Authority
• Chapter LXXVI Low-Level Radioactive Waste Disposal Facility Siting Commission
• Chapter LXXVII New York Local Government Assistance Corporation
• Chapter LXXX Industrial Exhibit Authority
• Chapter LXXXI Long Island Power Authority
• Chapter LXXXII Buffalo Sewer Authority
• Chapter LXXXIII Buffalo Water Board
• Appendices 

Audits and reports issued during the week ending June 4, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending June 4, 2021.

Click on the text highlighted in colorto access the complete audit report.

Local Governments

Auditors conducted reviews of 20 adopted budgets of various counties, cities, towns and villages across the state to assess whether local officials adequately considered the impact of the pandemic on their financial operations while developing their 2021 fiscal year budgets. Below are the findings of some of the communities reviewed:

Adequacy of 2021 Budgets – Town of Big Flats (Chemung County) Town of Big Flats officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets – Village of Camillus (Onondaga County) Village of Camillus officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets – City of Canandaigua (Ontario County) City of Canandaigua officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets – Jefferson County Jefferson County officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets – Town of North Hempstead (Nassau County) Town of North Hempstead officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets – Otsego County Otsego County officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets – Steuben County Steuben County officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.  

Village of Castile – Water Billing for Letchworth State Park (Wyoming County) Village officials did not accurately bill State Parks for water usage. They were using incorrect water usage overage rates since June 2017. As a result, they overbilled State Parks by $7,577. In addition, village officials charged $12,000 in late fees that were not authorized by the contract or contract amendment.

East Meredith Rural Fire District – Financial Activities (Delaware County) The board did not establish adequate controls over cash receipts and disbursements. Auditors found the board did not segregate duties or provide additional oversight over receipts and disbursements to ensure the treasurer accurately recorded all transactions in a timely manner.  

Franklin-Treadwell Fire District – Disbursements (Delaware County) Although district officials had some good controls over disbursements, the board did not always provide adequate oversight of the treasurer’s activities. The Board of Fire Commissioners did not properly segregate duties over disbursements or implement adequate mitigating controls. The treasurer processed 55 electronic transfers and 10 cash withdrawals totaling $856,347 without board oversight. Aside from minor exceptions, which auditors discussed with district officials, disbursements were authorized, supported and for appropriate district purposes. However, the failure to review disbursement activities increases the risk for unauthorized and inappropriate transactions.

Town of Friendship – Justice Court Operations (Allegany County) Although the justices properly collected, recorded and reported fines and fees, they did not deposit and disburse all fines and fees in a timely manner. Auditors found 67 receipts totaling almost $11,000 were not deposited within 72 hours, as required. Monthly accountabilities were not performed. As of Dec.1, 2020 the town board had not completed an audit of the 2018 and 2019 records, as required. As a result, the board’s ability to effectively monitor financial operations of the court was diminished.

Town of Hancock – Justice Court Operations (Delaware County) Fines and fees auditors tested were properly recorded and deposited intact and in a timely manner. However, monthly accountabilities were not performed, and cash balances exceeded known liabilities by $3,436 as of June 30, 2020.

NFC Development Corporation – Project Approval and Monitoring (Niagara County) Corporation officials awarded projects in accordance with established guidelines, but once funds were disbursed, officials generally did not follow up with businesses to ensure they complied with their agreements. Auditors examined 19 project agreements. They found officials did not confirm that the 18 businesses, which agreed to create or retain a total of 96 positions, actually created or retained them. In addition, three of the eight loans reviewed had delinquent payments totaling $39,000. The board also did not receive project status reports and it did not meet as required.

Town of Owasco – Highway Department (Cayuga County) Town officials did not adequately oversee highway purchasing, planning and interfund charges.

Auditors found 596 highway claims totaling $349,824 that did not have an approved purchase order request; 599 claims totaling $356,815 did not have an approved purchase order request; and 234 claims totaling $96,900 did not have documentation to support a business purpose.

Tompkins County Development Corporation – Board Oversight (Tomkins County) The board generally oversaw operations but was unaware that its policy covered the calculation of the administrative fee. As a result, an administrative fee of $88,815 was collected even though only $1,000 should have been collected in accordance with the current board-approved policy.

City of Yonkers – Budget Review (Westchester County) Auditors found that significant revenue and expenditure projections in the adopted budget are not reasonable. In addition, city officials’ continued practice of using debt to pay for recurring costs is imprudent.

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