(5 min): Write down one question or comment you have about FOIL on the Post-It Note provided to you.

How Can I FOIL the NYC DOE?

Disclaimer: Prior results do not guarantee a similar outcome.

This workshop will:● Provide you with a step by step guide on

how to write a Freedom of Information Request and Appeal to the NYC DOE.

● Give you ideas of how to FOIL process works should you want to FOIL another City or State agency (you’ll have to do your own digging on whom the Record Access Officer is!)

● Provide examples of things you can ask for via FOIL.

● Teach you how to craft an appeal.

This workshop will NOT:● Teach you how to hack the DOE

servers to acquire unlimited, top-secret information, records, or intelligence.

● Guarantee that you can get your records 100% of the time.

● Teach you how to write an Article 78 appeal for records.

● Bore you!

Let’s Talk:What do you want to get out of this session?

Have you FOILed before?

What records did you ask for?

FOIL and the DOE● The FOIL Unit is part of the Office

of the General Counsel (“Legal”). You will deal with the following folks:● Charity Guerra (General Counsel

and Records Appeals Officer) ● Joseph A. Baranello (Central

Records Access Officer)● Semira Ansari (Agency Attorney) ● Natacha Beaufils (handles clerical

work) ● Milo Alba (handles clerical work) ● Senior Field Counsel (see, http:

//schools.nyc.gov/Offices/GeneralCounsel/Legal/SFC/default.htm)

Things You Can FOIL (from the DOE’s FOIL Unit)

● Principal’s Procurement Card (P-Card) statements● OSI investigative memos and reports*● Emails from NYC DOE Outlook (about you or

someone else)● Audits of your school● Expenditures from Title I, II, III, ELL grants, etc.● Observation reports*● Annual Professional Performance Review (APPR)

forms*● Personnel files

WHAT ELSE HAVE YOU FOILED?

* Information to be revealed about this record at end of presentation.

STEP 1: IDENTIFY WHAT YOU WANT TO GET AND WHOM TO CONTACT

● WHOM SHOULD I CONTACT?

● Address your email to the DOE’s Central Records Access Officer Joseph A. Baranello (JBaranello3@schools.nyc.gov and FOIL@schools.nyc.gov)

● You can CC and BCC whomever you wish! ● Personally, I like to CC Ms. Guerra, Tish James,

the Mayor, Chancellor, local congress-people/senators from the neighborhood associated with the records, politicians from my district, and Mr. Baranello’s supervisors (Judy Nathan and Robin Greenfield).

STEP 1: IDENTIFY WHAT YOU WANT TO GET AND WHOM TO CONTACT

● WHAT DO I WANT?

● Be specific in terms of time frame and specific people!

● Mr. Baranello (while obligated to by the Regulations of the NYS Committee on Open Government) will NOT help you with rephrasing or clarification!

Think fast:Which of the following is the better way to list records sought within a FOIL request:

1. All emails on servers that are accessible by personnel employed by DIIT and that either originated at, or were received by, the following accounts, from August 2012 to present with “Smiley” in the subject or body of the emails: MSmith2@schools.nyc.gov and JBrown1@schools.nyc.gov.

2. All of Mary Smith’s and Joseph Brown’s emails.

Think fast:Which of the following is the better way to list records sought within a FOIL request:

1. All emails on servers that are accessible by personnel employed by DIIT and that either originated at, or were received by, the following accounts, from August 2012 to present with “Smiley” in the subject or body of the emails: MSmith2@schools.nyc.gov and JBrown1@schools.nyc.gov.

2. All of Mary Smith’s and Joseph Brown’s emails.

From what time frame?About whom or what?Too ambiguous! Not specific!

Just right!TimeframeSubject

Don’t worry, FOIL will delay anyway!

STEP 2: DRAFTING YOUR LETTER

● Please review the section of COOG for a model letter.

http://www.dos.ny.gov/coog/emailrequest.html

STEP 3: BEFORE YOU SEND!● If the materials are about you, YOU should be

the sender of the FOIL request. Or else, you will get this little message from Mr. Baranello or Ms. Ansari in your response letter (months or even years later):

● Otherwise, I strongly advise you to have a person who is NOT a DOE employee (past or present) and whose surname is DIFFERENT FROM YOURS to send out the FOIL letter for you!

What does Public Officers Law 87, Section 2 mean in plain English?

You can go to http://www.dos.ny.gov/coog/foil2.html#s87

An agency may deny parts of a record if this record falls into the following categories:

a. State/federal law prohibits disclosure. b. The record is an “unwarranted” invasion of privacy. **c. Collective bargaining would be negatively affected by disclosure.d. Business rights would be hurt by revealing records that are “trading

secrets” or agreements.e. Law enforcement practices that if revealed would deprive people of

civil rights or interfere with law enforcement investigations or judicial proceedings

f. Disclosure would put someone in danger. *g. See next slide!h. Test questions revealed prior to administration of exam is

unscrupulous. i. The record, if revealed, would put agency’s IT infrastructure at risk

for hacking/sabotage.

What does Public Officers Law 87, Section 2 mean in plain English?

G. An agency may deny access to records or portions thereof that are inter-agency (between several) or intra-agency (within one) materials which are not:i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government

The DOE will cite (g) and (b) excessively in their appeals.

The NYPD loves to cite (e) and (f).

STEP 4: THE LOOOOOONG WAIT!● 6 months to 2 years of waiting before you get your records

is COMMON.● Keep track of ALL letters (PDFs) Ms. Beaufils sends you, as

attachments to a transmittal email, pertaining to your FOIL requests. You will need them if access to records is denied either in whole or in part, and you wish to appeal!

● Use an Excel spreadsheet to make note of the following:● When you sent the email● The content of the email● When you got the acknowledgment email● The dates of the monthly extension letters you got from

the FOIL Unit as well as the dates that it was alleged a request will be determined by.

STEP 5: THE APPEAL PROCESS● Your final response letter will contain statutory exemptions and may

contain citations in situations where there is a complete or partial denial of access. Mr. Baranello or Ms. Chasan will quote:

● Statutory exemptions from the list contained in FOIL §87(2).

● FOIL Advisory Opinions from the NYS Committee on Open Government or case law (court decisions).

● Teach yourself the case law and be ready to appeal them, especially if you need these records for a court case of your own.

Disclaimer: Prior results do not guarantee a similar outcome.

STEP 5: THE APPEAL PROCESS

● You could (and SHOULD) email the following folks for an advisory opinion on how to deal with redactions or denial of access:● Robert J. Freeman: Robert.Freeman@dos.ny.gov

● Is FOIL delaying too long? Go here: http://tinyurl.com/j2jp89b

Disclaimer: Prior results do not guarantee a similar outcome.

How do I search for Advisory opinions on my own?

1. Go to www.dos.ny.gov/coog

2. Go to FOIL on the orange bar. From the drop-down menu, select: “Advisory Opinions.” Click it.

3. Type in keywords (emails, investigation, receipts) into Search bar. OR, look up keywords /phrases in ABC order.

What cases can I use?● Lewis v. Giuliani (NYS Supreme Court, New

York County, 4/21/97)● UFT v. NYC Health & Hospitals

Corporation ● Gould v. NYC Police Department (89 N.Y.

2d 267) ● Blecher v. NYC Board of Education (New

York Law Journal, 10/25/79)

AFL:My FOIL request for Principal Smith’s and AP Brown’s emails regarding myself has finally been granted! Unfortunately there are a lot of redactions. ● What are the steps I need to take to write a

proper appeal? ● What cases can I cite in my appeal?

(BONUS!)

STEP 6: YOUR APPEAL’S RESULT● Access granted (very rare) but it happens =

☺● Wait (often longer than ever) for your

records!● Access denied = ☹

● Take the NYC DOE to court by filing an Article 78 litigation. The link for forms and instructions are on the packet.

● Your Notice of Claim should just contain the facts and allegations with a stated Cause of Action, and the legal arguments should go in a Memorandum of Law.

Disclaimer: Prior results do not guarantee a similar outcome.

Special Notes:● OSI memos will only be accessible if they

are substantiated. Unsubstantiated memos are not available for public viewing.

● Observations: A teacher sent Courtenaye Jackson-Chase an appeal asking her why an APPR form had been redacted. Ms. Jackson-Chase implied that since the results of an APPR form are never final, the unredacted form will never be available.

Special Notes:● APPR forms and observation reports will be

either UNAVAILABLE in full, OR be heavily redacted because of:

● If you are currently litigating a U-rating/Ineffective rating or dismissal on the basis of teaching quality and classroom performance, you should have a friend submit a FOIL request for your APPR and observation reports. It is likely the DOE will respond with a statement similiar to what you see above.

● Use the above response in your lawsuit as proof that there were no “statistics” or “facts” in such records. Consult with your attorney!!!!!

Resources and other awesome stuff!● Lydia.howrilka@live.com for:

● FOIL advice● Court decisions other than Blecher, Lewis, UFT, and Gould● Sample letters

● Edufoil (edufoil.com): request@edufoil.com

● FOI-L Registration: https://listserv.syr.edu/scripts/wa.exe?A0=FOI-L

● www.protectportelos.org/f-o-i-l

● www.dos.ny.gov/coog

ANY FINAL QUESTIONS?

How did Lydia Do?:

● Please complete the following survey and submit it to Lydia.