Analysis

NYC Education Dept. and NY Post Settle Case That Post Says Was Real Reason Behind City Reforming Public Records Rules

By David Cantor | April 16, 2018

Read all about it in the New York Post. The pugnacious tabloid appears to be the only outlet reporting that it settled a lawsuit alleging that the city Department of Education violated state law by improperly extending due dates — for as long as 20 months — when responding to Post reporters’ public records requests.

The terms weren’t dramatic: the DOE provided the documents sought by the Post and published new guidelines for how it responds to all state Freedom of Information Law requests. But there may be a small reveal about the origin of the revised guidelines, which the department called “part of our ongoing work” when it announced them last September but may owe more to the tabloid’s influence than it has acknowledged. The DOE has been widely criticized for its lack of transparency.

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The Post’s suit, filed in August 2016, faulted the DOE for delays and said its rules for handling FOIL requests violated the law, particularly in allowing city education officials to extend the deadline of a request every 20 business days. The state official charged with overseeing FOIL called this practice “terrible.”

Last September, The 74 found that more 200 requests submitted between 2014 and 2016 remained unanswered. The Post’s lawsuit involved 12 different requests for information, ranging from extended teacher absence data to bus driver misconduct records.

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While the case was pending, the DOE drew up revisions and updates to its FOIL regulations that were ratified in November. They specify that the department will provide a “reasonable date” for responses that require additional time and give those who file poorly worded or cumbersome requests an opportunity to edit them.

The language in the settlement stipulation is careful about imputing credit to the Post for the DOE changes, saying the department collected input “from multiple sources, including discussions with the Post.” It describes the amended guidelines as having “incorporated many of the suggestions that it received from the Post and from other sources.”

“We listened to feedback about our FOIL process from various stakeholders, including members of the public,” DOE spokesman Doug Cohen said. He said he disagreed with Post lawyer Jeremy Chase, who described the tabloid as having made a “significant contribution” to the new regulations.

“I wouldn’t characterize it that way,” Cohen said. The DOE had already begun to consider updates when the lawsuit was filed, he said.

But Chase and Post reporters involved with the case who spoke to The 74 maintained that the DOE revisions closely tracked a “wish list” of fixes suggested by the paper during year-long negotiations, including improved communication when requests were filed and ending the “institutionalization of extension letters.”

“We did think it was somewhat odd when they announced the Chancellor’s Regulations revisions without even telling us,” the lawyer noted.

“The fact remains that their Chancellor’s Regulation would have not have changed had the Post not filed this lawsuit and engaged in over a year of negotiations with the DOE.”

Robert Freeman, executive director of the state Committee on Open Government, concurred. “I think the threat of the lawsuit was the precipitating factor. It was the impetus.”

The settlement also allows the Post to seek legal fees, indicating the court is willing to rule on whether the newspaper should have needed to bring legal action at all.

The Post’s complaint said DOE officials were engaged in a “pattern and practice” of “unilaterally granting themselves extensions of time” that left reporters “in limbo — their requests neither granted nor denied — with the only certainty being the receipt of another monthly Form Delay Letter from Respondents gifting themselves more time and abdicating their statutory duty.”

The 12 requests singled out in the complaint each went unfilled for at least six months. As it happens, in a 2013 report published while he was public advocate, Mayor Bill de Blasio spoke of requests that “had not received an approval or denial determination after six months of waiting,” concluding that “these non-responses represent de facto denials” — a position that, if in force today, might trigger hundreds of lawsuits.

Whether DOE officials conceived of the new policies or had changes thrust upon them, many legal observers and advocates believe the agency has taken a step in the right direction. Some say delays won’t meaningfully improve, however, unless the department considerably increases staff in its records office.

Nor does it appear that existing requests have been expedited. The advocacy group StudentsFirstNY, which is critical of de Blasio’s stewardship of city schools, says it hasn’t received responses to seven separate requests dating back at least a year.

The 74’s request for teacher misconduct records, submitted in April 2016, has not been yet been filled despite a letter from DOE General Counsel Howard Friedman promising delivery by Jan. 31, 2018. The DOE subsequently extended the due date to April 30.

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With every fix comes new workarounds. The 74 submitted a request in late February for a list of open FOIL requests filed since the new rules went into effect. In its reply, the records office said it would fill the request on March 30.

In April, The 74 received a letter that extended the date to June 21.

It’s possible that, facing less pliable deadlines, the DOE will be tempted to respond by selecting more distant dates, eroding some of the benefit of ending the delay letter process.

The Post complaint said that during those repeated delays “the Petitioners and the public are left in the dark about the workings and failings of their government.”

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