Applying the exemption from releasing documents and records to the public pursuant to a FOIL request

Applying the exemption from releasing documents and records to the public pursuant to a FOIL request

Mulgrew v Board of Educ. of the City School Dist. of the City of New York, 2011 NY Slip Op 06328, Appellate Division, First Department

Litigation involving demands for public documents or records pursuant to New York State’s Freedom of Information Law [FOIL] may result should the custodian of the document[s] or record[s] claim that the records or documents sought are covered by a FOIL exemption and elects not to release them on that basis.* 

In contrast, in this action a third party,  Michael Mulgrew, asked the court to prohibit the New York City School District, the custodian of the records or documents involved, from releasing “Teacher Data Reports that disclose teachers' names.”** 

Essentially Mulgrew contended that if a record or document was "eligible for exemption" pursuant to FOIL, the custodian of the record or document could neither release it nor provide it to an individual or entity demanding it.

While noting that “Public agency records are presumptively open for public inspection and copying," the Appellate Division focused on a collateral issue -- the burden of demonstrating the withholding of such material in reliance on a "FOIL exemption.”

The court said that the party "seeking an exemption from disclosure has the burden of proving entitlement to the exemption (Public Officers Law §89[5][e]," and concluded that the same criteria controlling the custodian of the documents or records claiming a FOIL exemption as the basis for rejecting the FOIL request applied with respect to Mulgrew in his seeking to withhold the documents or records pursuant to a FOIL exemption. The Appellate Division concluded that Mulgrew, as the party claiming the exemption, failed to sustain this burden.

Further, the court observed that the requested documents or reports did not fall under the exemption for personal privacy set out in Public Officers Law §87(2) (b).

Even though “privacy interests” are implicated, the Appellate Division ruled that the release of the information did not fall within one of the six examples of an "unwarranted invasion of personal privacy" set forth in Public Officers Law §89(2)(b).

Additionally, the court commented that “when balancing privacy interests at stake against the public interest in disclosure of the information. we conclude that the requested reports should be disclosed. Indeed, the reports concern information of a type that is of compelling interest to the public, namely, the proficiency of public employees in the performance of their job duties.” 

* N.B. The basic concept underlying FOIL is that all government documents and records, other than those having access thereto specifically limited or prohibited by statute, are to be made available to the public upon request. The custodian of the records or documents requested may elect, but is not required, to withhold those items that are otherwise within the ambit of the several exemptions permitted by FOIL otherwise consistent with law. As to the release of public records specifically limited by statute, examples include Education Law §1127 [Confidentiality of records] and §33.13 of the Mental Hygiene Law [Clinical records, confidentiality]. 

** Assuming, but not conceding, that a third has standing to bring a Mulgrew–type action,  the decision implies that such an entity could, in effect, override the custodian's decision not to avail itself of a FOIL exemption that it might otherwise trigger with the end result being that the entity, were it to prevail, could deny public access to the public record or document in question notwithstanding the custodian's discretionary decision to the contrary, thereby frustrating the basic concept underlying FOIL. 

 

Determining eligibility for representation and indemnification of public employees being sued

Determining eligibility for representation and indemnification of public employees being sued

Salino v Cimino, 1 N.Y.3d 166

Public Officers Law Sections 17 [state officers and employees] and 18 [municipal employees] and other local laws provide for the representation and, if found liable, the indemnification, of officers and employees of the jurisdiction who are being sued -- a significant benefit to such individuals. Key to claiming such a benefit, however, is that the individual is being sued as a result of his or her performing his or her official duties, as the Salino case demonstrates.

Suffolk County police officer Gary Salino was served with the summons and complaint in a Federal action [Corey Kay and Winfield Properties, Ltd. v County of Suffolk et al, Civil Action No. 00-1161] in both his personal and his official capacities.

Suffolk County Attorney Robert J. Cimino denied Salino's request for representation by the County in the Federal action after he determined that Salino “[was] not acting within the scope of [his] public duties or employment in connection with the incidents which form the basis for [the Federal complaint].” Salino sued, contending that he was entitled to such representation pursuant to the Suffolk County Code Section 35-3 (as amended by Local Law 6-1985).*

Justice Berler, citing the Appellate Division decision in Bestafka v Suffolk County, 121 AD2d 670, observed that in Bestafka the Appellate Division said that “we interpret Local Laws, 1985, No. 6(3)(a) of Suffolk County as providing that in all actions against county employees, the initial determination of whether the county will provide a defense is to be made by the County Attorney on the basis of whether or not the employee's acts giving rise to the suit were 'within the scope of his public employment.'“

Justice Berler then noted that the County Attorney's determination may only be judicially set aside if it is found to be arbitrary and capricious.

The court sustained the County Attorney's decision, commenting that a report by the Suffolk County Police Department's Internal Affairs Bureau of its investigation into complaints filed by Kay alleging false arrest and improper performance by both Salino and his co-defendant in the Federal action states that “[Salino's] part in the arrest of Kay came about as a result of [his] personal interest in real estate activities engaged in by Kay and his associates.”

Concluding that Cimino's decision was neither arbitrary nor capricious, the court dismissed Salino's petition.

The Court of Appeals agreed, stating: Here, the factual record supports the County Attorney's determination that petitioner's alleged acts of wrongdoing against Kay were the consequence of his private interest as a property owner, not his public responsibility as a police officer. That he was acting to protect and advance his private self-interest is demonstrated, for example, by his individual FOIL requests, by his statements submitted as a long-time community member, not as a police officer, in support of criminal charges against Kay, and by the proceedings in his name challenging Kay's use of the property. Plainly, the County Attorney's determination denying him a defense was neither arbitrary nor capricious.

* The relevant section of the County Code states that “the County shall provide for the defense of the employee in any civil action or proceedings in any state or federal court or administrative agency arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting or in good faith purporting to act, within the scope of his public employment or duties ... [and] [t]he determination of an issue of whether or not an employee was acting within the scope of his public employment or duties at the time ... shall be made in the first instance by the County Attorney.”

An arbitration award may be confirmed despite the non-appearance of a party in an Article 75 proceeding

An arbitration award may be confirmed despite the non-appearance of a party in an Article 75 proceeding

Saunders v City of New York, 283 AD2d 213

The lesson of the Saunders case is that if a party wishes to oppose an Article 75 motion to confirm an arbitration award, it had better appear before the court or it will run the risk of being the target of a default judgment.

A Supreme Court justice confirmed an arbitration award in favor of Lee Saunders, requiring the City of New York to pay him $15,000 in severance pay. The award was confirmed as a result of “default” after the City failed to appear at the Article 75 proceeding to object.

The City's motion to vacate the award was denied by Supreme Court and the City appealed. The Appellate Division affirmed the lower court's action, noting that the City's motion to vacate its default was properly denied in view of the City's failure to set forth a reasonable excuse for its repeated failure to appear and provide any meritorious defense to the courts confirming the arbitration award in Saunder's favor.

According to the ruling, the City did not appear at four scheduled court dates. Despite “its attorney's personal assurances to the court that there would be no default on the fifth court date,” marked final by the court, the City again failed to appear on that occasion as well.

This conduct, said the Appellate Division, “evincing such a complete lack of regard for the court and the legal process,” is not excusable.

In addition, said the court, “it is plain that [City] has no meritorious defense to confirmation of the subject arbitration award,” commenting that the arbitrator's award of $15,000 in severance pay in accordance with the terms of a severance incentive program agreement is supported by the record.

In any event, an arbitrator's award “will not be vacated even though ... his interpretation of the agreement misconstrues or disregards its plain meaning or misapplies substantive rules of law, unless it is violative of a strong public policy, or is totally irrational, or exceeds a specifically enumerated limitation on his power.” None of these elements, said the court, were relevant in this case.

Appointment as a coach

Appointment as a coach

Decisions of the Commissioner of Education, 14,504

Rita Magee was employed by the Coxsackie-Athens Central School District as a certified physical education teacher. Magee applied for a vacant field hockey coaching position in the district. The district selected another individual, Donald Daoust, for the position.

Contending that Daoust “has neither a New York State teaching certificate nor a temporary coaching license,” Magee filed an appeal challenging the district's action with the Commissioner of Education.

Although the Commissioner dismissed Magee's appeal as moot -- the field hockey season had ended before he had an opportunity to consider the matter -- he commented that:

1. A school district may employ an uncertified individual as a coach only when a certified physical education teacher or certified teacher with coaching qualifications and experience is unavailable; and

2. An uncertified individual may not undertake his or her coaching responsibilities until he or she has actually received a temporary license.

The decision specifically noted that “[t]he mere application for that license by the district does not qualify the prospective coach for his or her duties.”

New York State's Marriage Equality Act

New York State's Marriage Equality Act

Source: New York State Department of Civil Service GENERAL INFORMATION BULLETIN No. 11-04

On August 25, 2011, Acting Commissioner Patricia A. Hite distributed the New York State Department of Civil Service"s GENERAL INFORMATION BULLETIN No. 11-04 to all department and agency human resource personnel and affirmative action officers; and agency counsels.

The text of Bulletin #11-04 is set out below:

“As you are aware, the Marriage Equality Act, signed by Governor Cuomo, became effective July 24, 2011. The Act amends the Domestic Relations Law to provide that a marriage that is otherwise valid shall be valid in New York regardless of whether the parties to the marriage are of the same or different sex. No State government employee shall be treated differently with respect to the rights, benefits, privileges, protections or responsibilities relating to marriage based upon their spouse being of the same sex or a different sex.

“Since April 2007, the Department has extended recognition to same-sex spouses in legal marriages from other jurisdictions for purposes of spousal benefits under NYSHIP. Additionally, in light of several court decisions and consistent with State policy, the Department conducted a review of state statutes, policy statements and regulations to ensure that terms such as "spouse", "husband" and "wife" are construed in a manner that encompasses legally executed marriages between same-sex couples. With the enactment of the Marriage Equality Act, individuals of the same sex may be lawfully married and may not lawfully be denied any State government right, benefit, protection or privilege. If you are aware of any policy or regulation relating to employment with the State which continues a distinction based upon whether parties to a marriage are of the same or a different sex, please bring it to the attention of the Department immediately.

“If you have any questions concerning health benefits for same sex spouses, please contact Mary Frye, Assistant Director of the Employee Benefits Division of the Department of Civil Service, at (518) 485-1771. 

"For any other employment related questions or concerns, please call Mark Worden in Counsel's Office of the Department of Civil Service at (518) 457-2624.”