UFT Solidarity

May 14, 2016

How Can I FOIL the NYC DOE?
Presented Humbly By: Lydia Howrilka (Lydia.howrilka@live.com)
STEP 1A Identify What You Want to Get
: You should be able to obtain any of the following records (and
more), either in whole, or in part, from the DOEs FOIL Unit (which is part of the Office of the General Counsel).
FOIL is the acronym for Freedom of Information Law. However
be specific in terms of time frame and
specific people you are requesting information about
! (
e.g.: All E-mails on servers that are accessible by
personnel employed by DIIT and that either originated at, or were received by, the following account, from August
2012 to the present containing the name _____ in the subject or body: _____@schools.nyc.gov.)

Principals Procurement Card (P-Card) statements

Substantive OSI investigative memos and reports
Emails from NYC DOE Outlook (about you or someone else1 )
Audits of your school
Expenditures from Title I, II, III, ELL grants, etc.
Observation reports
Screenshots from EIS or NYCAPS or Galaxy
Annual Professional Performance Review (APPR) forms
Personnel files

STEP 1B Identify Whom You Plan to Contact

: Make sure you address your FOIL request to Central Records
Access Officer Joseph Baranello (JBaranello3@schools.nyc.gov and FOIL@schools.nyc.gov).
You can cc various DOE officials or managerial attorneys, i.e., Chancellor Carmen Faria
(CGFarina@schools.nyc.gov), Panel for Educational Policy (panel@schools.nyc.gov), Charity Guerra
(CGuerra7@schools.nyc.gov), Robin Greenfield (RGreenf@schools.nyc.gov), Judy Nathan
(JNathan@schools.nyc.gov) and politicians (whomever you think would make Mr. Baranello shiver or roll his eyes
in aggravation but move faster).
You can also cc lawyer Officer Semira Ansari (SAnsari2@schools.nyc.gov) as well as Executive Director of the
NYS Committee on Open Government Robert J. Freeman (Robert.Freeman@dos.ny.gov) and Assistant Director
of the NYS Committee on Open Government Camille Jobin-Davis (Camille.Jobin-Davis@dos.ny.gov).
STEP 2 Drafting Your Letter
: The following websites have good models to follow:
www.protectportelos.org/f-o-i-l
www.dos.ny.gov/coog(Committee on Open Government)
Right to Know (Committee on Open Government):
http://tinyurl.com/dxmxj52
Your letter should follow a format similar to this one
:
Dear Mr. Baranello,
Pursuant to the New York Freedom of Information Law, please send me copies, by email, of the following records:
1

Note: In order to get emails about another person, you will need to get a signed released from the individual.

[detail the items you want]

If you have any questions about this request, or require any type of rephrasing or clarification, please contact me by
email at _____________.
Please be advised that the manner in which you respond to FOIL requests is constrained not only by FOIL, but
also by the Regulations of the NYS Committee on Open Government. I would appreciate a response within five
business days of receipt as required by law. Thank you for your cooperation.
Sincerely,
[sign your name]
STEP 3 Send it Out
: Before you send your letter . . . UNLESS THE MATERIALS CONCERN YOU
EXPLICITLY (e.g.: emails that your principal wrote about you, OSI reports on you), please have a friend who is
not employed by the DOE, and who has a surname different from yours, send out your request under his/her name
and email address! Your principal will find out youve been asking for records on him/her if you use your real
name for fifty FOIL requests (or maybe even for a single FOIL request)!
Of course, for a small fee the folks at EduFOIL can send out your request for you and track its progress. Email
them at
help@edufoil.com
for more information.
Do a good spell check and grammar check before you send the request or ask the friend to send it. Ask for help if
you think you werent explicit enough in your request. IT GETS EASIER! It just takes practice; your first FOIL
request will be worse than your tenth or hundredth! Im speaking from experience.
STEP 4 The Wait
: The attorneys or other staff of the FOIL Unit will send monthly extension letters. They
interpret Chancellors Regulation D-110 (
http://tinyurl.com/gwtcflx
) as giving them leeway to delay, delay, delay
determining a sensitive or inconvenient FOIL request for months and years, seemingly
ad infinitum
.
You or your friend can send an appeal to Charity Guerra of a constructive denial of access if the delay seems
excessive to you. Go to the following webpage:
http://tinyurl.com/j2jp89b
You will find Appeal A Denial due to an Agencys Failure to Respond in a Timely Manner.
STEP 5 The Appeal
: Your final response to the original FOIL request will contain statutory exemptions and may
contain citations in situations where there is a complete or partial denial of access. Mr. Baranello and Ms. Ansari
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).
You can cite FOIL, case law, and the FOIL Advisory Opinions right back at them. When you get to this step,
shoot Lydia an email for a copy of an actual appeal letter. Here are some additional resources:

1. Contact Robert J. Freeman, the Executive Director of the NYS Committee on Open Government
(Robert.Freeman@dos.ny.gov) and request an Advisory Opinion specific to the current request that was
denied or partially denied, or where the determination is being excessively delayed.
2. Go to
http://tinyurl.com/gsa2brv
and search for Advisory Opinions with key terms relating to your
request, e.g.: email, factual data, investigative materials, or oneself
3. Familiarize yourself with the following cases (You may be able to cite them in your appeal!):

Lewis v. Giuliani
(NYS Supreme Court, New York County, 4/21/97): email Lydia for a copy.
Gould v. NYC Police Department
(89 N.Y.2d 267)
http://tinyurl.com/jbjvqkv

Blecher v. NYC Board of Education

(New York Law Journal, 10/25/79): email Lydia for a copy.
UFT v. NYC Health & Hospitals Corporation
(104 Misc. 2d 623)
http://tinyurl.com/jk765u6

Of course, for a small fee the folks at EduFOIL can send out your appeal for you and track its progress. Email
them at
help@edufoil.com
for more information.
Some Reminders for Your Appeal:
1.
2.
3.
4.

Attach the initial acknowledgment letter, all extension letters, and the determination letter.
Address all appeals to Ms. Charity Guerra (CGuerra7@schools.nyc.gov and FOIL@schools.nyc.gov).
You have 30 CALENDAR days to file an appeal if you are denied access to a record.
Copy and paste the text of the original request, and its dated, time stamped header, into the body of your
email. You can use the following style:

Your letter should follow a format similar to this one

:
Dear Ms. Guerra,
Re: FOIL Appeal F9887
Pursuant to the New York Freedom of Information Law (FOIL) and the Regulations of the NYS
Committee on Open Government, I hereby appeal the denial of access regarding my FOIL request F9887
(OR I hereby appeal the failure of the Central Records Access Officer to issue a final determination with
respect to my FOIL request F9887), which was made on December 24, 2013, and sent to Central Records
Access Officer Joseph Baranello.
I have attached the acknowledgment of receipt letter and the final determination letter. (OR I have
attached the acknowledgment of receipt letter and the series of extension letters. As of todays date, I have
not received Mr. Baranellos final determination.)
I have included a copy of my original request below the dashed line.
I disagree with the reasons for denial due to the following...
(OR The delay in determining my request is excessive because)
[And now, list your citations which you feel would justify the granting of access to the records (or portions
thereof) you requested or would justify Ms. Guerras directing Mr. Baranello to determine the request by a
particular date.]

I will look forward to hearing from you within ten business days as is required by law. Please send a copy of
your decision to Robert J. Freeman at Robert.Freeman@dos.ny.gov.
Thank you for your cooperation.
Sincerely,
NAME OF FOIL APPELLANT
Cc: As appropriate
---------------------------------------------------------------------------------------------------------------------------------------------------------[Paste your original request with its header showing the date and time it was emailed below the dashed line.]
APPEAL DENIED?You may want to file a lawsuit pursuant to Article 78 of the Civil Practice Law and Rules
(CPLR) in order to challenge the denial of access in the NYS Supreme Court. The link for forms and instructions
from the courts Help Center for New York County is
http://tinyurl.com/jmguwy5
To file an Article 78, follow the format for filing a Notice of Petition (not an Order to Show Cause) and Verified
Petition on pages 12 to 15 in the booklet How to Start a Special Proceeding at
http://tinyurl.com/zezxvjp
The
forms you will need are:
Index Number Purchase Sheet (available in the Help Center, Room 116 at 60 Centre Street)
Request for Judicial Intervention (a fillable RJI is available in PDF form at NYC Courts website
http://tinyurl.com/ztnucve
).
The best way to learn how to write an Article 78 petition and a Memorandum of Law is to find examples of these
online. Technically, the petition should just contain the facts and allegations with a stated Cause of Action, and the
legal arguments should go into the Memorandum of Law. One Article 78 petition and Memorandum of Law
relating to FOIL and the DOE is
Advocates for Children and the Asian America Legal Defense and Education
Fund v. the NYC Department of Education
:
http://tinyurl.com/hr5armh
http://tinyurl.com/hjcmsrw