Failure to exhaust administrative remedies bars judicial review

In this CPLR Article 78 action, the Plaintiff [Petitioner] sought judicial review of two determinations of the New York State Workers' Compensation Board [Board] involving FOIL requests Petitioner had submitted to the Board seeking the production of certain documents from the Board. 

The Board promptly responded to Petitioner's requests, granting in part and denying in part the request. Petitioner then submitted an administrative appeal concerning the "denial in part" elements in his FOIL response. The Board denied the appeal on  the ground that it was untimely. Supreme Court agreed, dismissing Petitioner's Article 78 appeal. 

Subsequently Supreme Court considered Petitioner's application for reargument concerning the matter but adhered to its prior determination, in effect denying the petition and dismissing the proceeding. Petitioner next appealed the lower court's decisions to the Appellate Division.

The Appellate Division affirmed the Supreme Court's rulings, explaining "Public Officers Law §89(4)(a) provides that a person denied access to requested information under New York States Freedom of Information Law [FOIL] must appeal the denial in writing to the head of the entity or other designated person within 30 days."

As Petitioner failed to submit an appeal of the determination within 30 days, "he failed to exhaust his administrative remedies and, thus, could not resort to a judicial forum to gain relief."

Click HERE to access the Appellate Divisions decision.

Appeal to the Commissioner of Education involving a school board election, an alleged denial of "free speech," and failure to agree to a new collective bargaining agreement dismissed for procedural reasons

Noting that the petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief, the Commissioner of Education dismissed an appeal involving challenges to a school board election for a number of reasons, including:

1. Failure to establish any grounds for relief: The Commissioner opined that the Petitioner failed to submit a reply or otherwise addressed certain assertions advance by the school district and thus failed to establish any basis for relief in connection with this claim.

2. Standing to assert rights on behalf of another: To the extent that the Petitioner sought to assert the individual rights of another person or his “surrogate” with respect such person serving as a poll watcher for Petitioner, the Commissioner held that Petitioner lacked standing to do so.

3. Free speech: The Commissioner, noting that Courts have held that a school board meeting is a limited public forum for purposes of the First Amendment and a school board's placing “Reasonable time, place and manner restrictions on speech in limited public fora comport with the Constitution ... [if] they are content-neutral, serve a significant government interest and leave open alternative channels for expression”, held that Petitioner failed to establish that the school board violated his right to free speech in connection with a board meeting. Here, said the Commissioner, "the district clerk asserts that “[Petitioner] has been prohibited from publicly speaking at regular board meetings only to the extent that he has commented on matters outside the agenda, has gone beyond the time allotted for comment, or has made pejorative and/or repetitive comments.”

4. Lack of Jurisdiction to consider a matter: Addressing Petitioners assertions concerning the school board failing to agree to a new collective bargaining agreement, the Commissioner, citing Civil Service Law §205 [5] [d], held that this issue "must be dismissed for lack of jurisdiction," explaining that the Civil Service Law vests exclusive jurisdiction over complaints involving collective bargaining in the Public Employment Relations Board [“PERB”].*

* See, also, Matter of New York City Transit Authority v. New York StatePublic Employment Relations Board, et al., 19 NY3d 876.

Click HEREto access the full text of the Commissioner's decision in the appeal. 

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The New York City Teachers Retirement System's rejection of a member's application for accidental disability retirement trumps the Social Security Administration's finding that member was disabled

The genesis of this Article 78 action was New York City Teachers Retirement System [NYCTRS] disapproval of a member's [Plaintiff] application for accidental disability retirement notwithstanding the fact that the Social Security Administration had earlier found that the Plaintiff was disabled.

Supreme Court dismissed Plaintiff's petition, which ruling was unanimously affirmed by the Appellate Division.

Citing Matter of Merlino v Teachers' Retirement Sys. of the City of N.Y., 177 AD3d 430, the Appellate Division opined that NYCTRS' determination to deny Petitioner's application for accident disability retirement was not arbitrary and capricious, and was supported by some credible evidence. The court, noting that NYCTRS' Medical Board determination the Petitioner was not disabled was supported by its physical examination and interview of the Petitioner.

The Board, said the court, found upon examination, Petitioner was able to move around unassisted, had normal strength and range of motion in his shoulders, elbows, wrists, and hips, and had little or no tenderness in his neck and back. Further, the Medical Board noted that Petitioner had not had standard of care epidural injections, trigger point injections, or any other procedures to improve his current complaints.

Although Petitioner claimed that the Medical Board had ignored his medical history, the Appellate Division said that any conflicting evidence was for the Medical Board to resolve.

Addressing Petitioner's reliance on the disability finding of the Social Security Administration that Petitioner was disabled, the court said the Social Security Administration's finding was not dispositive of the Medical Board's disability determination nor did the finding of a medical arbitrator, who examined Petitioner after the Medical Board made its determination, "warrant Article 78 relief." 

CLICK HEREto access the full text of the Appellate Division in this action.

Claiming the public-interest privilege in an effort to prevent the disclosure of communications between public officials alleged to be confidential

In this appeal, the Appellate Division considered the so-called "public-interest privilege," a common-law rule that "attaches to confidential communications between public officers, and to public officers, in the performance of their duties."

The rule may be applied where it can be shown that the public interest requires that such confidential communications or its sources should not be divulged because "the public interest would be harmed if the material were to lose its cloak of confidentiality".

The genesis of this action was a New York City Charter §93(b) investigation of the City of New York's preparation for, planning for, and response to the COVID-19 pandemic initiated by New York City's Comptroller. The Comptroller sought to identify how those actions impacted the City, its finances, residents and businesses. In connection with the investigation, the Comptroller issued a "request for information" to the City seeking information and communications related to the COVID-19 pandemic. When the City did not fully comply with the request for information, the Comptroller served a subpoena seeking the City's production of certain documents received, created or issued by the City. Additionally, over the course of the investigation, the Comptroller issued subpoenas seeking the testimony of certain City officials concerning the pandemic. 

Ultimately the matter was considered in the course of a special proceeding in which the City filed an answer and cross petition seeking a court order "dismissing the special proceeding and quashing, modifying or fixing conditions on the City's compliance with the subpoena."

Citing Matter of World Trade Ctr. Bombing Litig., 93 NY2d 1, the Appellate Division said that the governmental body asserting the public-interest privilege must offer specific support as to the potential harm to the public from disclosure of the information and, in the rare case, that this may require an in camera* examinations of the communications involved. Further, said the court, the privilege will be applied in the event the entity objecting to disclosing the information demonstrates that the public interest in confidentiality outweighs the public interest in disclosure.

The Appellate Division concluded that, based on the affidavits presented in the course of the special proceeding, in this particular situation the interest in protecting the City's pre-decisional and deliberative communications is stronger than the interest in allowing the Comptroller "to review, and possibly publish, the communications as part of his investigation."

In the words of the Appellate Division: "Given the ongoing threat of the pandemic, the Mayor and his leadership team needed access to information and unvarnished advice from all sources. This required that the sources have some assurance that their advice would remain confidential and free from fear of reprisal. The public disclosure of the requested documents involving confidential, deliberative communications among an inner circle of decision-makers concerning an emergency response to a pandemic could chill future deliberations about pressing matters, potentially to the public's harm."

Noting that Supreme Court did not make a ruling whether a privilege log or in camera review is necessary in this instance because the only issue litigated was the applicability of the privilege, the Appellate Division ruled that the Comptroller's request for a privilege log and in camera review of the documents over which the City claims privilege should be made to Supreme Court.

Click HERE to access the full text of the Appellate Division's ruling.