How our loss in court today ironically provided evidence of how shallow de Blasio's education policies have been

Today at the NY Supreme Court, a hearing was held on our lawsuit vs the redactions of 2015 City Hall decision memo which discussed and memorialized the decision of the Mayor and his top aides to reject several recommendations of the Blue Book working group on how to revamp the school capacity formula.  In particular, the Mayor rejected the group's proposal to align the formula with smaller classes -- which would be important if he or any subsequent mayor decided to significantly reduce class size as de Blasio had in fact promised to do when he first ran for Mayor.

On April 10, 2016, I submitted a Freedom of Information request for the decision memo from the Mayor's office about their decision to accept or reject the thirteen recommendations of the Blue Book Working group . This working group, appointed by the Chancellor and co-chaired by Lorraine Grillo, the head of the School Construction Authority and then-CEC 2 President Shino Tanikawa, made several recommendions in December 2014, including that the DOE should align the school capacity formula to the smaller class sizes in their original Contract for Excellence class size reduction plan

The City sat on these recommendations for more than six months, and finally in July 2015, in the middle of summer, announced that they would accept seven of the 13 but reject six others, including what several members said was the most important one: the one related to the goal of reducing class size.  There were several articles about this rejection, including in Chalkbeat and WNYC Schoolbook , DNAinfo, and on my blog here  and here.

It took more than two years after I had FOILed it, but in August 2017 I finally received the decision memo - 8 pages long and almost completely redacted.  See below. Interestingly, it was signed by all the Mayor's top staff except for the DOE Chancellor Farina or the President of the School Construction Authority Lorraine Grillo.

Because it was the middle of summer I missed the statute of limitations for an appeal, but at my request, fellow Kids PAC member Brooke Parker FOILed the memo as well.  When she received the same document with the same eight pages of redactions, she then appealed the redactions to the Corporation Counsel without success.  Finally, she filed an appeal in court, on July 17, 2018, with the help of Laura Barbieri of Advocates for Justice.

Generally speaking, inter-agency materials are exempt from FOIL; but according to the NY Public Officers Law they are FOILable if they  reflect a "final agency policy or determination" as this memo did; or include "statistical or factual tabulations or data."  I imagined that in eight pages of discussion of issues as technical as school capacity, utilization, class size, how many cluster rooms to allot to each school, etc. that at least one or two facts must have been mentioned.

This afternoon in court, after a brief discussion during which Laura explained  what the Blue Book was, and why the decision to reject the proposal to align the school capacity formula with smaller classes was a matter of importance and public interest, Judge Arthur Engeron of the State Supreme Court heard from the City's attorney who argued that this document was not a "final agency determination" but a "predecisional memo"  because the Mayor could have rejected the decisions within it - even though the Mayor did not.  He also claimed that there were no facts or data cited in the eight pages of discussion that were blacked out.

The Judge then asked for a copy of the unredacted memo and went back in his private office with his law clerk and intern to peruse it.  When he came out about a half hour later, he said he would reject our claim, because the memo did not necessarily reflect a "final agency policy or determination" but simply the advice of his top staff.  Moreover, he reported that there were no facts or data included in the memo's eight pages, but only opinions related to politics and discussion of how the public would react to these decisions.

This was quite astonishing and in my mind, an indictment in itself.  Even as the state's highest court ruled that NYC students' constitutional rights depended on a sound basic education which in turn, would depend upon smaller classes, and even as one would assume decisions on a school capacity formula would rely on analysis of data, the Mayor's staff did not even mention any facts or figures in their deliberations, but merely political considerations.

This is further evidence of just how empty of substance many of the education policies of this administration have been and should give potential supporters of de Blasio's Presidential campaign pause.

Parent sues City Hall for refusing to release unredacted decision memo on class size

Decision memo p.2

Update: Tomorrow, Wed. May 15 at 2:30 PM at the NY Supreme Court, 60 Centre St., Rm. 418, Judge Arthur Engeron will hear arguments in this lawsuit vs NYC for redacting nearly the entire City Hall decision memo on why the Mayor rejected the Blue Book Working Group recommendations to align school capacity with smaller classes.

For immediate release: July 17, 2018

For more information contact: Leonie Haimson; leoniehaimson@gmail.com; 917-435-9329.

On Monday, July 16, 2018, Brooke Parker, a NYC public school parent, filed a lawsuit against the Office of the Mayor of the City of New York, challenging the almost complete redaction of a City Hall Decision Memo that contained a discussion of the reasons for the city’s rejection of several recommendations of the Blue Book Working Group, including a proposal to align the school capacity formula with smaller class sizes.  She is represented in court by Laura D. Barbieri, Special Counsel of Advocates for Justice, a pro-bono law firm.

Brooke is also a member of NYC Kids PAC, which had sent a candidate survey to Bill de Blasio when he first ran for Mayor.  In June 2013, his campaign returned the survey, in which he promised to  “Reform the blue book formula so it more accurately reflects overcrowding and incorporates the need for smaller classes.”

In February 2014, his newly-appointed Chancellor Carmen Farina appointed a working group to come up with proposals to improve the accuracy of the formula used to devise school capacity and utilization. The working group contained administrators, teachers and parents, and was co-chaired by Lorraine Grillo, the President of the School Construction Authority and Shino Tanikawa,  a parent leader and then-President of the Community Education Council in District 2 in Manhattan.

As explained by a NYC DOE spokesperson, “"Over the last decade, communities across the city have been cut out of decision-making processes that undermined the voices of educators and families. That approach is now gone—and we're replacing it with one that reflects a genuine desire to engage with communities.  With new leadership that will listen, it's a new era for our system. Families and educators need to know that we're going to seek their feedback and engage with them as much as we can."

The Blue Book Working Group made its first round of proposals that were accepted by the DOE in June 2014, including that trailers would no longer be counted in estimating school capacity.  In December 2014, the Working Group proposed thirteen more changes to the formula, including that the DOE should align the school capacity formula to the smaller class sizes in their original, state-approved Contract for Excellence class size reduction plan.  This would require a formula that assume no more than 20 students per classroom in grades K-3, 23 students in grades 4-8 and 25 students in high school, to ensure adequate space to lower class size to those levels. 

On July 28, 2015, without explanation, the City sent an email to reporters, in which the seven recommendations that were accepted were noted, as well as three proposals it would “study.” The email omitted any mention of the three proposals it had rejected outright, including the one that several members of the Working Group said was the most important: to align school capacity with smaller classes.

As Lisa Donlan, a member of the BBWG and the President of the Community Education Council in District 1 said at the time, “Certainly for me and for many of us, the class size issue was the biggest issue that we felt would have the greatest impact on bringing us to painting an accurate picture of reality and making sure that all kids got access to an adequate education — hands down.”

When reporters asked why the City had rejected the proposal on class size, the only answer offered by a Department of Education spokesman was that schools would "continue to work toward this critical goal" of reducing class sizes.

Following up on an earlier Freedom of Information request by Leonie Haimson of Class Size Matters, Brooke Parker filed a FOIL request in on January 24, 2018 seeking “The City Hall 2015 decision memo about which proposals of the Blue Book working group to accept or reject, with the reasons for this decision included.” 

On February 2, 2018, the Mayor’s office sent in response an eight-page document entitled “Decision memo” that was almost completely blacked out, with no mention of the proposals rejected and no information provided on why certain proposals were accepted and others not.  The rationale offered for the redactions was that the items redacted were “inter-agency discussions” and thus exempt from FOIL, pursuant to Public Officers Law § 87(2)(g).  

Yet this law also states that any “final agency policy or determinations” are not exempt from FOIL, as this memo certainly was.  It also makes clear that any inter-agency materials that contain factual data or instructions to staff that affect the public are not exempt, and it is extremely unlikely that no data or facts were cited in the discussion of these decisions. Ms. Parker appealed the redactions to the City, and on March 15, 2018, Henry T. Berger of the Mayor’s Office responded, “Your appeal is denied because I have determined that the redactions were proper.”  Thus, she had no further option but to file an appeal in court.

As Ms. Parker points out, “The decision made by the Mayor’s office to reject the recommendation of the Blue Book working group to align school capacity with smaller classes was terribly unfortunate, and will make it far more difficult to achieve the smaller classes that NYC children need to receive their constitutional right to a sound basic education, according to the State’s highest court in the CFE case.  But then to suppress any of the reasons for this decision and black out the entire discussion explaining the reasons for it makes the original decision even worse.“

Leonie Haimson, Executive Director of Class Size Matters, adds: “When he was running for office, the  Mayor promised parents that he would reduce class size and align the school capacity formula with smaller classes.  He also promised to bring more transparency and community involvement to decision-making, especially when it came to our schools.  He has so far failed at all three.  Hopefully, the Court will agree that his administration can no longer hide their damaging decisions in a flurry of redactions, but will have to spell out the reasoning behind them.  New York City parents and other stakeholders deserve no less.“

The verified complaint is posted here.

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What is City Hall trying to hide? See their decision memo blacking out why they refused to align the school capacity formula with smaller classes

Yesterday, the DOE announced changes to its Freedom of Information guidelines, stating that from now on, they will attempt to more accurately estimate when they will provide the documents requested, including "the approximate date, which must be reasonable under the circumstances, when the request will be granted or denied."

The current practice is that every month or so, the DOE’s legal office sends you a boilerplate email saying they are still looking for the document, but “due to the volume and complexity of requests” it will take another month “to respond substantively to your request.”  Then the next month goes by, and you get the exact same message again.

I currently have four FOIL requests outstanding for over a year, including the Renewal school’s class size reduction efforts and funding for this purpose, technology spending by DOE between 2011 and 2015, the cost of charter school facility upgrades and leases charter leases and facility upgrades between FY 2014 and FY 2016, and the names of the private organizations receiving student personal information and the legal agreements on how this data will be used and shared. 

All these requests were filed in April 2016 and I am still waiting; nearly a  year and a half later, for a substantive response.

Despite de Blasio’s campaign promises that he would reform the FOIL process and respond in a more timely fashion, the response time is now worse than ever, and DOE remains the least transparent city agency in response time according to this Chalkbeat analysis.   (See also the section on Transparency in the KidsPAC report card in which the Mayor got an "F".)

The current wait times and continual postponements of a substantive response are a violation of law, since they represent a “constructive denial” according to Robert Freeman of the NY Open Government Committee and other experts.  Whether or not this new procedure will mean that the DOE will respond any more speedily to FOIL requests is completely unknown.  I remain skeptical. The new policy was instituted as a result of a lawsuit by the NY Post, so perhaps if the DOE doesn’t shape up their act, they will have to go back to court.  

When I was on vacation in the middle of August,  I did receive a substantive response to one of my FOILs – this time one I filed to the Mayor’s office.  On April 10, 2016, I asked for the decision memo from the Mayor's office about their decision  to accept or reject the thirteen recommendations of the Blue Book Working group . This working group, appointed by the Chancellor and co-chaired by Lorraine Grillo, the head of the School Construction Authority, had recommended in December 2014 that the DOE align the school capacity formula to the smaller class sizes in their original Contract for Excellence class size reduction plan

The City sat on these recommendations for more than six months, and finally in July 2015, in the middle of summer, announced that they would accept seven of the 13 but reject six others, including what many members said was the most important one: to align the capacity formula with smaller class sizes.  There were several articles about this rejection, including in Chalkbeat and WNYC Schoolbook , DNAinfo, and on my blog here  and here.

The city’s decision not to align the school capacity formula is also an important factor cited  in our class size complaint to the state, filed in July; (see p. 13 of the complaint) , providing yet more evidence of the city’s violation of the Contract for Excellence law, which requires NYC to lower class size and to align its school construction plan with its class size reduction plan. To this day, no one from City Hall has explained their reasons for rejection this proposal -- though members of the Working Group have repeatedly asked for them to do so. 

The final decision memo from the Mayor’s office that I finally received in August is dated May 28, 2015, and is almost entirely blacked out.   The only info that is legible pertains to which recommendations they accepted, with all the explanations for the basis for their decisions redacted.  They even blacked out any mention of the six recommendations they rejected.

The other interesting aspect of the decision memo is how it was signed off on by many high- level staff -- including the Deputy Mayor, the Corporation Counsel, the Chief of Staff, Emma Wolfe, and Dean Fulehain, head of OMB, but no one from the DOE or SCA, which is peculiar given how the issue pertains to the way school capacity will be measured. 

The Mayor’s office FOIL determination letter that I received along with the memo claims the redactions were made because of the exception to FOIL listed under Public Officers Law Section 87(2)(g):

Documents exempted from release include:

(g) are inter-agency or intra-agency 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;

Yet though this decision memo does pertain to intra-agency communications, it is also a "final agency policy or determination."  

It also presumably cited facts to explain and rationalize the decisions made.  If there were no facts cited to explain the decisions made,  this would even be worse.  Below is my appeal letter to the state, making these points with relevant evidence from previous court decisions and asking them to provide a cleaner copy.

_________________________

Henry Berger, Records Appeals Office

foilappeal@cityhall.nyc.gov

RE: ID #2016-002-00063

Dear Mr. Berger:

I am appealing the decision to redact nearly the entire City Hall decision memo dated May 28, 2015, that approved or rejected certain proposals on reforming the school capacity formula; this letter is attached.

 

The FOIL determination letter that I received along with the memo stated that the redactions were made because of exceptions listed under Public Officers Law Section 87(2)(g):

Documents exempted from release include:

(g) are inter-agency or intra-agency 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… 

Yet though this decision memo does include intra-agency communications, it is also a "final agency policy or determination."   It also presumably included at least some facts to explain and rationalize the determinations made, which should not have been redacted.

See also  these relevant legal cases, granting access to such documents, from the Committee on Open Government website:

New York Times Co. v. City of New York Fire Dep't, 4 N.Y.3d 477, 796 N.Y.S.2d 302 (2005) (held, dispatch calls made over Fire Department's internal communications system concerning response to September 11 terrorist attacks are disclosable "to the extent they consist of factual statements or instructions affecting the public"),,,,

Miller v. Hewlett-Woodmere Union Free School District, N.Y.L.J., May 16, 1990 (Sup. Ct., Nassau County, 1990) (granting access to records of final decision denying request to change schools); Rold v. Coughlin, 142 Misc.2d 877, 538 N.Y.S.2d 896, (Sup. Ct. 1989) (granting access to inmate health care records as factual data and final agency determinations);

I urge you to reconsider and remove these redactions that related to these determinations as:

1- this is a final decision memo; and 2- presumably the explanations contained at least some facts.

This appeal is filed within 23 business days from the day I received the redacted memo.

Yours,

Leonie Haimson

Executive Director

Class Size Matters

leoniehaimson@gmail.com

917-435-9329