Another FOIL Lesson: Be mindful of your audience

Another FOIL Lesson: Be mindful of your audience

Source Patrick M. Malgieri, Esq. – Posted on the NYMuniBlog* July 18, 2012 - Reprinted with the permission of NYMuniBlog

Another FOIL Lesson: Be mindful of your audience by Patrick M. Malgieri could be sub-title “Another example of the Doctrine of Unintended Consequences.”

Mr Malgieri writes:

“In a recent decision of the New York Court of Appeals, the state’s highest court determined that records exchanged by a state agency with a federal agency were not entitled to an exemption from disclosure under the state’s Freedom of Information Law set out in Article 6 of the New York Public Officers Law.**  In the case of Waterford v. New York State Department of Environmental Conservation, 18 N.Y.3d 652, 944 N.Y.S.2d 429 (March 22, 2012), the town of Waterford sought to obtain from the DEC records relating to the joint DEC and U.S. Environmental Protection Agency project in the Hudson River dredging PCBs deposited in the Hudson River.  While DEC complied with a portion of the request, it denied access to certain records that had been exchanged between it and the EPA, claiming that the “inter-agency” exception set out in Section 87(2)(g) of the Public Officers Law exempted those records from disclosure.

“The court, in an opinion by Chief Judge Lippman, found that the term 'agency' as defined in Section 86(3) of the Public Officers Law included only state and municipal agencies.  As such, the EPA, as a federal agency, did not constitute an agency for purposes of FOIL.  Consequently, the inter-agency exemption did not apply to the materials exchanged between the state and federal agencies.

“DEC also argued that the 'intra-agency' exemption would be applicable to these records.  The Court of Appeals had long ago found that, in furtherance of the deliberative process, the intra-agency exception could extend to records exchanged between a public agency and outside consultants engaged by that agency. 

However, the court in Waterford declined to apply the exemption, finding that, in this instance, the EPA was the lead agency on the project and ‘was not retained by the DEC and does not function as its employee or agent.’

“Public officials would do well to keep in mind that all public records and communications are presumptively subject to disclosure unless the record or the circumstance falls within one of the relative handful of express exceptions set out in the Public Officers Law or an exception to disclosure set out in another statute or is covered under a statutory or common law privilege (such as the attorney-client privilege).  One of the easiest traps in which public officials may fall is when they communicate with or share a record with someone to whom the exception or privilege does not extend.  In Waterford, that someone was a federal agency which, although concededly a governmental entity, was not among the governmental agencies identified in the FOIL statute. 

“Another ready trap is when a record or communication is shared with or made to a group of individuals and/or entities (such as an e-mail to a large number of recipients), not all of whom fall within the exception or privilege. One stray recipient can unwittingly subject the entire record to disclosure.”

* You may register to receive the NYMuniBlogvia e-mail at:

http://nymuniblog.com/?page_id=16

**  NYPPL Notes: The basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited or prohibited by statute, are to be made available to the public. The custodian of the records or documents requested may elect, but is not required, to withhold those items that otherwise fall within the ambit of the several exceptions to such disclosure permitted by FOIL.

School officials have a duty to report suspected child abuse to the appropriate government agency

School officials have a duty to report suspected child abuse to the appropriate government agency

J.H. v. County of Nassau, 20 Misc 3d 1142(A)

J.H. v. County of Nassau the court considered the question of the fallout if school personnel file a report of alleged child abuse that is ultimately found to be incorrect. Could the employee be held liable for defamation if the report proved to be “unfounded?”

Citing Rine v. Chase, 309 AD2d 796, the court ruled that as the school was required to report the alleged abuse of maltreatment of a child to the appropriate child protective agency, neither the school nor the individual filing the report were liable notwithstanding the fact that ultimately the allegation was found to be “unfounded” as filing such reports were mandated by law

Not only do school personnel enjoy a qualified immunity in connection with reporting suspected child abuse in good faith, their failure to do so may result in disciplinary action.

In Hoey v PERB, App. Div., 284 A.D.2d 633, teacher aides were given specific instructions to report any concerns about classroom matters -- they were to immediately bring them to the attention of the supervisor of special education or the school principal.

According to the decision, the aides becoming aware that a teacher had engaged in bizarre and inappropriate behavior of a sexual nature with one of the students.

About a month later they reported the teacher's suspected conduct to one of their union representatives rather than school administrators. Two days later the union representative told school administrators of the aides' report.

A number of other aides were terminated after being found guilty of insubordination for failing to follow a supervisor's directive and jeopardizing the safety of a child under their supervision by failing to timely report suspected child abuse.

Special officer found guilty of wrongfully showing her badge

Special officer found guilty of wrongfully showing her badge
OATH Index No. 1968/08

Administrative Law Judge John Spooner found that a special officer wrongfully displayed her badge in three off-duty incidents: once during a dispute with a laundromat attendant, and twice in discussion with a police sergeant, whom she asked to void a parking ticket because she is an officer.

The ALJ recommended that sixty-day suspension without pay be imposed as the penalty for the misconduct.

Determining if a quorum required to conduct official business is present

Determining if a quorum required to conduct official business is present
Formal Opinions of the Attorney General 2008-F1

It is not uncommon for a public board or council to have both voting members and ex officio non-voting members. In this instance the Attorney General was asked to advise the New York State Independent Living Council as to what constituted a quorum for the purpose of its conducting official business. The Council consisted of 24 voting members and a number of ex officiomembers, i.e., an individual holding membership on the Council by reason of his or her holding another position. The ex officio member in this instance was representative of State agencies that provided service for individuals with disabilities.

The Attorney General advised the Council that thirteen voting members of the Council were required to be present for the purposes of having a quorum and at least thirteen voting members must approve a motion for it to pass. 

Accordingly, the ex officio members could not be included among the thirteen members necessary to constitute a lawful quorum.

The full text of the opinion is posted on the Internet at:
http://www.oag.state.ny.us/bureaus/appeals_opinions/opinions/2008/Formal/2008-F1%20pw.pdf

Request for reconsideration of an administrative decision does not toll the statute of limitation

Request for reconsideration of an administrative decision does not toll the statute of limitation
Lavin v Lawrence, 54 AD3d 412

The Nassau County Civil Service Commission disqualified Andrew Lavin for appointment to a position as a Nassau County Police Officer on August 8.

The Appellate Division dismissed Lavin’s challenge to the Commission’s decision as time-barred pursuant to CPLR 217(1). The court said that the Commission’s decision became final and binding upon him on August 22, at the latest, when Lavin’s attorney received a letter from the Commission indicating that that it had reviewed the Lavin's “submissions in response to the original disqualification notice and adhered to that earlier determination.”

Noting that an individual’s request for additional time to take an administrative appeal and the Commission's review of the letters of recommendation sent by the individual did not act to toll the statute of limitations, the Appellate Division ruled that Lavin’s appeal filed on January 4 of the following year was untimely.

In contrast to the legal effect of an individual merely submitting a “request for reconsideration,” assume that the administrative body actually agrees to reconsider the matter and thereafter issues a new determination. In such a situation the statute of limitations will begin running from the date of the new “final determination.” This is the case even if the new “final determination” confirms the original administrative decision [see Raykowski v NYC DOT, 259 A.D.2d 367].

The full text of the Lavin decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06644.htm

Applicant for accidental disability retirement benefits must show that the disability resulted from “sudden mischance” unrelated to the ordinary risks of the job

Applicant for accidental disability retirement benefits must show that the disability resulted from “sudden mischance” unrelated to the ordinary risks of the job

Reynolds v DiNapoli, 2012 NY Slip Op 05374, Appellate Division, Third Department

A police officer was permanently disabled as the result of injuries sustained while attempting to subdue a suspect who had been handcuffed and placed in the rear of a police car. Although the officer’s application for performance of duty disability retirement benefits was approved, his application for accidental disability retirement benefits was denied by the Retirement System on the ground that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law.

The officer appealed but the Appellate Division confirmed the System’s administrative decision.

The court said that in order to establish entitlement to accidental disability retirement benefits, an individual must demonstrate that the incident giving rise to the injuries was a sudden mischance unrelated to the ordinary risks of performing his or her job.

The decision noted that the denial of accidental disability retirement benefits when a law enforcement officer sustains an injury in the course of restraining a disruptive individual, as that type of physical contact is inherent in the performance of an officer's duties, has been consistently upheld by the court.

As the officer’s testimony indicated that he was injured in the course of attempting to subdue an unruly suspect, the Appellate Division said that it found that substantial evidence supported the Retirement System's determination.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05374.htm

=======================

General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

========================