Labor & Employment Law

Requesting official records and the Freedom of Information Law [FOIL]

By Harvey Randall, Esq.

Requesting official records and the Freedom of Information Law [FOIL]
Application of Michael J. Gentile for the removal of Edward Lilly as a member of the Board of Education of the Lewiston-Porter Central School District, Commissioner of Education Decision No. 15,747, (April 25, 2008)

Michael J. Gentile asked the Commissioner of Education to remove Edward Lilly from his position as a member of the Board of Education of the Lewiston-Porter Central School District.

One of the issues reported by the Commissioner in adjudicating this appeal concerned the Freedom of Information Law (?FOIL? - Public Officers Law Article 6). According to the decision, the poll books used at the May 2005 election ?were allowed to be taken off the campus by a private individual at the direction of a member of the Board of Education.? It was alleged that Lilly had requested the acting superintendent to provide the 2005 poll books to an individual, Alan Ward, without submitting a FOIL request¹ to the custodian of the records sought. The poll books were given to Mr. Ward, ?who took them off the premises, apparently to give to Lilly.?

The Commissioner said ?The gravamen of petitioner?s application is his claim that Lilly willfully used his position as a board member to intimidate district officials so as to cause them to violate Education Law §2116, board policy and FOIL relating to records access.

Education Law §2116 provides:

The records, books and papers belonging or appertaining to the office of any officer of a school district are hereby declared to be the property of such district and shall be open for inspection by any qualified voter of the district at all reasonable hours, and any such voter may make copies thereof.

Although Gentile contended that Lilly willfully used his position to cause, or attempt to cause, district administrators and officials to violate this statute and district policy, most of his allegations relate to Lilly?s purported attempts to avoid compliance with the procedural provisions of FOIL, such as the requirement for a written records request and payment for copying costs.²

Dismissing the appeal, the Commissioner said that Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner. Accordingly, said the Commissioner, ?I have no jurisdiction to address the FOIL allegations raised in this appeal.? In addition, the Commissioner commented that any allegations of noncompliance with FOIL requirements in permitting access to district records without written requests or payment more appropriately pertain to the actions of the district administrators rather than Lilly.
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¹ The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to ?voluntarily? provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

² Regarding the collection of ?FOIL fees,? in Fenstermaker v Edgemont Union Free School Dist., 48 AD3d 564, the Appellate Division rejected Fenstermaker?s challenged to the Freedom of Information Law fee collecting practices of the Edgemont Union Free School District. Edgemont charged Fenstermaker $0.25 per copy for copies made pursuant to his FOIL request. The court said that Edgemont correctly asserts that this fee is permitted by statute (see Public Officers Law §87 [1] [b] [iii]). Further, the Appellate Division commented that the district's decision to delay fulfilling of a subsequent FOIL request until Fenstermaker paid the fee owed for his first FOIL request was neither arbitrary nor capricious, citing New York State Dept of State, Commission on Open Government Advisory Opinion No. 9659.

Full post as published by New York Public Personnel Law on May 05, 2008 (boomark / email).