Remedying an inadvertent disclosure of records provided pursuant to a Freedom of Information Law request

In responding to the Center on Privacy and Technology's [Center] request for certain documents pursuant to the Freedom of Information Law [FOIL] the New York City Police Department [Department] sent certain "unredacted" documents to the Center. The Department subsequently asked Supreme Court to prohibit the information inadvertently given to the Center from being disclosed by it. Supreme Court granted the Department's motion and the Center appealed the court's ruling.

The Appellate Division held that Supreme Court's order did not impose an unconstitutional prior restraint by precluding the Center from referring to the source of unredacted documents inadvertently disclosed to it by the Department in responding to the Center's FOIL request. The court said that the unredacted documents at issue constituted but a small portion of the thousands of pages of records the Department had provided the Center in responding to its FOIL request. 

Citing Seattle Times Co. v Rhinehart, 467 US 20, the Appellate Division explained that "an order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny." Instead, opined the Appellate Division, a court may restrict a litigant's use of information obtained through litigation as long as the restriction:

[a] "furthers an important or substantial governmental interest unrelated to the suppression of expression"; and

[b] "the limitation of First Amendment freedoms is no greater than is necessary or essential to the protection of the particular governmental interest involved."

Concluding that the Department had a substantial government interest in preventing the inadvertent disclosure of the unredacted records at issue, the court noted that the Supreme Court's protective order was narrowly tailored in expressly allowing the Center to disseminate any information it had gleaned from the materials at issue and requiring the Department to provide the Center "with replacement records bearing redactions that are not challenged on the merits [in] the instant appeal."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_01724.htm

July 2020 AELE case notes, publications, and seminar alerts

The case notes, publications, and seminar alerts listed below have been posted on the Internet by Americans for Effective Law Enforcement [AELE]:

Public Safety Discipline and Internal Investigations Seminar---Attend Virtual or In Person. Las Vegas, Nevada is opening for business and will be in full swing for the September 28, 2020 3.5-day updated seminar on "Public Safety Discipline and Internal Investigations Seminar." A first: You can virtually attend the seminar because it will be broadcast live. The seminar begins on Monday, September 28 and ends at Noon on October 1, 2020. Another first is online registration and payment. For registration and more information, http://www.aele.org/public-safety-discipline-and-internal-investigations.html

July Law Enforcement Liability Reporter: This issue has cases on COVID-19, failure to disclose evidence, & loss of evidence/preservation of evidence, false arrest/imprisonment: unlawful detention, Federal Tort Claims Act, firearms related: intentional use, firearms related: Second Amendment issues, medical care, and search and seizure: home/business. http://www.aele.org/law/2020all07/LR2020JUL.pdf

July Fire, Police and Corrections Personnel Reporter: This issue has cases on collective bargaining – duty to bargain, family personal and medical leave, First Amendment, homosexual and transgender employees, pay disputes – in general, pensions, probationary employment, race discrimination, race and sex discrimination, retirement pay and benefits, and sex discrimination. http://www.aele.org/law/2020all07/FP2020JUL.pdf

July Jail and Prisoner Law Bulletin: This issue has cases on COVID-19, disability discrimination: prisoners, governmental liability: policy/custom, medical care, medical care: mental health, Prison Litigation Reform Act: exhaustion of remedies, prisoner assault: by inmates, prisoner assault: by officers, prisoner suicide, and U.S. Supreme Court actions. http://www.aele.org/law/2020all07/JB2020JUL.pdf

This announcement is posted by NYPPL Pro Bono.

Audits of New York State Department and Agencies and political subdivisions of the State issued during the week ending July 3, 2020

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending July 3, 2020. To access the full report click on the data highlighted in color.

SCHOOL DISTRICT AUDITS

The following school district audits have been issued.

Eastport-South Manor Central School District – Building Safety (Suffolk County) District officials did not provide effective oversight to ensure compliance with required building safety at the junior-senior high school. Auditors determined, district officials did not fix leaks in the heating, cooling and ventilation system requiring buckets in the halls to collect leaked water. In addition, district officials did not create a corrective action plan to address issues found in the 2015 building condition survey.

Margaretville Central School District – Financial Management (Delaware County) The board overestimated appropriations and allocated approximately $1.4 million in fund balance from 2016-17 through 2018-19 that it did not use to fund operations because of generated surpluses. As of June 30, 2019, the surplus fund balance totaled approximately $3.9 million or 32 percent of the next year’s budget, exceeding the statutory limit. Overall, auditors determined the fund balance totaled almost $3.2 million, exceeding the statutory limit by approximately $2.7 million or 22 percent as of June 30, 2019.

Mount Markham Central School District – Financial Management (Herkimer County, Oneida County, Madison County and Otsego County) Officials overestimated appropriations by an average of $1.4 million (5.6 percent) from 2016-17 through 2018-19. In the last three completed fiscal years, the district generated operating surpluses totaling $2.3 million instead of the $2.6 million in deficits planned in the budgets. In addition, district officials have not updated the multiyear financial plan since it was first developed in 2016.

Yorkshire-Pioneer Central School District – Financial Management (Wyoming County, Cattaraugus County, Erie County and Allegany County) The board and district officials overestimated appropriations by a total of approximately $11.6 million from 2016-17 through 2018-19 and annually appropriated an average of $3.3 million of fund balance that was not used to finance operations. As of June 30, 2019, surplus fund balance totaled approximately $5 million and was 9 percent of 2019-20 appropriations, exceeding the statutory limit by approximately $2.7 million

MUNICIPAL AUDITS

The following local government audits have been issued.

Village of Dering Harbor – Board Oversight (Suffolk County) The board failed to comply with statutory requirements when presenting and adopting budgets for 2013-14 through 2018-19. Auditors determined the board underestimated revenues by a total of $151,908 (9.5 percent) and underestimated appropriations by a total of $210,126 (13.1 percent) over the past five years (2013-14 through 2017-18). As a result, the general fund realized operating deficits in four of the five years and general fund balance declined from $61,710 to $3,491. In addition, the board did not properly authorize a local law to exceed the tax levy limit. The 2018-19 levy exceeded the calculated limit of $331,470 by $65,143.

City of Syracuse – Water System Cybersecurity (Onondaga County) City officials could improve information technology (IT) security controls to safeguard water system operations against unauthorized access or disruption. Auditors determined network and local user accounts were not properly managed. Officials did not establish a process for staying current on water system cybersecurity threats. The city also did not have service level agreements (SLAs) with its IT vendors. Sensitive IT control weaknesses were communicated confidentially to city officials.