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Friday, September 16, 2016

NY Post sues NYC Department of Education for its abuse of the FOIL process

NYC parents and advocates have been continually frustrated with the delay and lack of response of DOE to Freedom of Information Law requests.  Sometimes I have waited up to two years, to then receive the DOE response that they don't have the document that I requested.

I have almost never received a fulfillment to my request within a reasonable time period -- a few months or less.  Instead, each time I receive the same form letter which says that because of "the due to the volume and complexity of requests we receive and process, and to determine whether any records or portions thereof will be subject to redactions permitted under Public Officers Law §87(2), additional time is required to respond substantively to your request. Accordingly, a response is currently anticipated" in about twenty days.  Then twenty days later I get the same letter again.

A typical instance occurred when I FOILed for the study that DOE had widely proclaimed attested to the accuracy of their teacher evaluation system, based on the value-added test scores of their students, the so-called "teacher data reports."

On December 3, 2008, DOE released a document justifying their this teacher evaluation system, entitled: “Teacher Data Initiative: Support for Schools; Frequently Asked Questions".  Among the claims made was the following: "A panel of technical experts has approved the DOE’s value-added methodology. The DOE’s model has met recognized standards for demonstrating validity and reliability.”

On Feb. 23, 2009, I FOILed for the names of members of this panel and any written materials they had produced.

On May 24, 2010, more than fifteen months later, I finally received a response. When I read the letter, the panel of experts said the opposite of what the DOE had claimed -- that these measurements could not be relied upon to fully evaluate the quality of ANY teacher.  Instead they specifically refused to endorse "any particular use \[of the method\] for accountability, promotion or tenure" purposes.  And:

"Test scores capture only one dimension of teacher effectiveness, and . . . are not intended as a summary measure of teacher performance....If high stakes are attached, there will be potential to game these measures by teaching to the test, selecting students, altering difficult-to-audit student characteristics, or outright cheating...." 
Daily News columnist Juan Gonzalez also exposed the hypocrisy of the DOE here; while pointing out how the system utilized inaccurate student and test scores data in many instances, making it an even less reliable gauge for assessing teacher performance. 

In contrast, when reporters FOILed the actual evaluations of 12,000 real-life teachers based upon this unreliable methodology (apparently after being encouraged to do so by DOE), Chancellor Klein was eager to provide the data immediately.  Their release was only temporarily delayed by a lawsuit from the UFT.

When Bill de Blasio ran for office, he promised if elected Mayor he would increase the transparency at the DOE.  Not only did he check off the box on the NYC KidsPAC survey that asked whether he would "Respond to FOILs in a timely and complete fashion" but then added:

I have a record of transparency and will ensure that under my administration, the DOE will be in full compliance with FOIL. As Public Advocate, I monitored and reported on the city’s compliance with the Freedom of Information Law (FOIL). I also created a “Transparency Report Card” helps the public track which agencies have complied with their FOIL obligations—and which have not.

Unfortunately, the first thing that happened after he took office was that I was excluded from the customary OMB budget briefings, with the excuse that advocates were no longer allowed in these meetings.

Then DOE closed School Leadership Team meetings to the public, violating the law and reversing the policy that it had previously if inconsistently maintained. (We are still waiting for the Appellate Court to rule on DOE's appeal of the April 2015 Supreme Court decision that closing these meetings is illegal.)

The DOE's responses to my FOILs have also been as slow as during the Bloomberg years -- even as to presumably uncontroversial issues like the approved plans of the PROSE schools, which the DOE has touted as innovative and progressive.  One of my DOE FOILs has been delayed for six months, and five of them for nearly six months, without any apparent progress.

So I was encouraged to hear that in August,  the NY Post had filed suit against the DOE for the months of delay in responding to their FOILs -- sometimes up to two years.  Here is the NY Post Article 78 petition , which makes fascinating reading; here is the memo of law.   An excerpt from the petition:

WHEREFORE, Petitioners respectfully request that this Court grant judgment:

(1) Declaring that Chancellor’s Regulation Chancellors Regulation D-110(VIII)(A) is unlawful and/or is inconsistent with N.Y. Pub. Officers Law § 84 et seq. and is, accordingly, invalid;

(2) Declaring that the DOE’s practice of sending repeated Form Delay Letters is inherently unreasonable and that determinations in its administrative appeal decisions that it may continue to deny access to public records because it has reissued serial unilateral extensions violates its obligations under FOIL, N.Y. Pub.Officers Law § 84 et seq.;

(3) Granting Petitioners’ Article 78 Petition, finding that DOE has constructively denied Petitioners’ requests, that Petitioners have exhausted their administrative remedies, and directing DOE to produce all disclosable records responsive to Petitioners’ outstanding requests within twenty (20) days of the Court’s order;

(4) Awarding Petitioners their costs and attorneys’ fees pursuant to Public Officers Law § 89(4)(c); and

(5) Awarding Petitioners such other and further relief as the Court deems just and proper.

Included in the petition is a relevant advisory opinion from Kristin O'Neill of the NY Committee for Open Government, an division of the NY Department of State:

....[T]he Post has now waited between five and nineteen months and received between three and fourteen Form Delay Letters for each of the nine pending requests. As you are aware, FOIL provides direction concerning the time and manner in which agencies must respond to requests.

Specifically, §89(3)(a) of FOIL states in part that:

"... it has long been advised that when an agency is unable to deny or provide access to records within five business days, it must provide an acknowledgement within that time indicating an approximate date, not to exceed twenty additional business days, on which it will grant access in whole or in part. If it is determined, either within five business days of the receipt of the request, or at or near the expiration of twenty business days of its acknowledgement, that it is unable to respond within twenty additional business days, it must indicate a "date certain" that includes both the date and the reasons for requiring additional time. Although we recognize that there are occasions when an agency will require an extension of time beyond that which it initially predicted, there is no provision in the statute for an extension beyond the date certain or repeated extensions. The date certain must be reasonable based on attendant facts and circumstances.

....A requester who is neither granted nor denied access to records with in the time limits set forth above or in the acknowledgment letter or any extension letter(s) may consider the request constructively denied and may appeal such denial in accordance with the procedures set forth below." (emphasis mine) As stated earlier, there is no provision in the statute for repeated extensions. ... As such, the agency is not permitted to establish the right to repeated extensions via regulation, where such right does not exist in statute or in the Committee's own regulations.

Also included in the lawsuit are the original reporters' FOIL requests and the repeated boilerplate non-responses from DOE. One of their requests which has not been fulfilled for over a year was for the substantiated cases of test or grade tampering as determined by the OSI -- the DOE's internal Office of Special Investigations.  There is no excuse for covering up any proven instances of cheating in our schools.

I don't agree with all the reporting in the NY Post.  Some of it is overly sensational; and the editors are obviously out to make de Blasio look bad.  Yet several of the Post reporters over the years, including Yoav Gonen and Sue Edelman, have uncovered serious corruption and mismanagement at the DOE, whether under Klein, Walcott or now, Chancellor Farina.  And NYC residents and taxpayers deserve a DOE that will be responsive, transparent and provide the public with its right to know.

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