Today I received an email from Greg Kern in his capacity as Freedom of Information Officer for the City School District of New Rochelle.
He said he was writing to me in reference to my Freedom of Information Law request dated November 26, 2019.
He said “further to my emails to you dated December 5, 2019, January 8, 2020, February 4, 2020, March 3, 2020, April 14, 2020, May 27, 2020 and July 7, 2020 (and of course August 4, 2020) please be advised that at this time, the District is still in the process of reviewing documents that may be responsive to your requests.”
He then offered two justifications:
(1) the voluminous nature of the materials sought and the potential for redactions
(2) School Districts have been closed in accordance with Executive Orders.
Because of this the district has determined that it will require an additional twenty business days within which to respond to my request.
20 business days from today is September 1.
That would be 280 days after my request – more than 9 months.
So what is this voluminous records request that takes 9 months or more to fulfill?
I requested emails between the New Rochelle Police Department and the City School District of New Rochelle on a specific topic — a third-party complaint concerning Lou DeRienzo — during a discrete period of time in November 2019.
The request is the opposite of voluminous.
That School Districts closed in March 2020 does not explain the failure to turn over a handful of easily obtainable emails in the months prior to COVID-19.
While kids have been out of school buildings since March to my understanding learning has continued and the District has continued to operate as a going concern. Presumably Mr. Kern had continued to receive a pay check. I fail to see how coronavirus explains his failure to produce a couple of emails for 9 months.
I raise this matter tonight because it is hardly an isolated case. Mr. Kern has failed to fulfill the vast majority of my FOIL requests since his start date with the District. There appears to be a pattern and I can only wonder if others besides me have had a similarly troubling experience with Mr. Kern and FOIL.
I would like Dr. Feijóo to determine how many FOIL requests Mr. Kern has received during his employment in New Rochelle and state at the next board meeting how many FOIL requests have been fulfilled or denied or remain pending and of those the number of days that each FOIL was or is pending.
For myself, I ask Dr. Feijoo see to it that all of my pending FOIL requests either be filled or denied by September 1.
Thank you.
NEW YORK STATE FOIL TIME LIMITS
When an agency receives a request, §89(3)(a) of the Freedom of Information Law requires that it has five business days to grant or deny access in whole or in part, or if more time is needed, to acknowledge the receipt of the request in writing and indicate an approximate date by which the agency will respond to the request.
An agency must grant access to records, deny access in writing, or acknowledge the receipt of a request within five business days of receipt of a request. When an acknowledgement is given, it must include an approximate date within twenty business days indicating when it can be anticipated that a request will be granted or denied. However, if it is known that circumstances prevent the agency from granting access within twenty business days, or if the agency cannot grant access by the approximate date given and needs more than twenty business days to grant access, it must provide a written explanation of its inability to do so and a specific date by which it will grant access. That date must be reasonable in consideration of the circumstances of the request.
FOLLOW UP LETTER TO THE NEW ROCHELLE BOARD OF EDUCATION DATED AUGUST 5, 2020
Dear Board Members,
I was unable last night in 3 minutes to provide the full context of the issue. Understand this DiRienzo email is but one FOIL request among many but serves to illustrate the issue with Mr. Kern’s disgraceful conduct.
I am aware you are quite busy with re-entry and the alternative high school and other issues.
I would just draw your attention to the oaths you swore in accepting your office:
“I do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of New York”
As you all know, our country was founded in a rebellion against the idea of taxation without representation. Maybe you do not all know that the specific issue the vexed the Colonists was that the British Parliament debated and passed laws in closed chambers and those laws were then not made available to read to the general public but impressed upon the People by a tyrannical leadership.
The Declaration of Independence is, in part, a response to this where it includes among “a long train of abuses and usurpations, pursuing invariably the same Object”, the following:
“He (the King) has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.”
The Declaration specifically mentions access to public records and the inability to observe the proceedings of legislative bodies.
The Constitution of the United States and the Constitution of the State of New York both require that the public can directly observe laws being debated and passed and that records of both be published and made available to the public. It is why our legislative chambers have visitor’s galleries and press galleries. It is why there is published a Congressional Record.
Therefore, unlike a discussion about moving the alternative high school or MiFi internet access, the issues of the Freedom of Information Law and Open Meeting Law go to the heart of the Oath of Office each of you affirmed.
Last night you witnessed violations of both laws by the Administration. You must not stand for it or else be in violation of your Oath of Office. It is the rock upon which you sit as elected representatives of the people of New Rochelle — not the whims of your employees.
For for those not familiar with FOIL let me share with you the following
“When an agency receives a request, §89(3)(a) of the Freedom of Information Law requires that it has five business days to grant or deny access in whole or in part, or if more time is needed, to acknowledge the receipt of the request in writing and indicate an approximate date by which the agency will respond to the request.
“An agency must grant access to records, deny access in writing, or acknowledge the receipt of a request within five business days of receipt of a request. When an acknowledgement is given, it must include an approximate date within twenty business days indicating when it can be anticipated that a request will be granted or denied. However, if it is known that circumstances prevent the agency from granting access within twenty business days, or if the agency cannot grant access by the approximate date given and needs more than twenty business days to grant access, it must provide a written explanation of its inability to do so and a specific date by which it will grant access. That date must be reasonable in consideration of the circumstances of the request.”
Below follows the history of my rather simple FOIL Request for a couple of emails dated November 26, 2019.
The request is for inter-agency emails between the City School District of New Rochelle and New Rochelle Police Department and as such are subject to FOIL. As you can see no effort is made to deny the request on grounds such as their being exempt from FOIL or they do not exist. Instead, Mr. Kern offers a shifting series of pretexts to justify his failure to produce a handful of emails:
“the nature of the materials sought”
“the voluminous nature of the materials sought”
“still in the process of reviewing documents”
“in the midst of preparing the School Budget”
“School Districts have been closed in accordance with Executive Orders 202.4, 202.11 and 202.14”
“still in the process of reviewing documents AND School Districts have been closed in accordance with Executive Orders 202.4, 202.11, 202.14, 202.18 and 202.28”
“still in the process of reviewing documents AND the voluminous nature of the materials sought AND School Districts have been closed in accordance with Executive Orders.”
Here is the text of my email to Mr. Kern:
November 26, 2019
This is a public records request.
I would like to obtain the following records:
Records related to a complaint made concerning Lou DeRienzo, head football coach of New Rochelle as described here:
New Rochelle Football Coach Under Investigation by Yonkers Police
It is my understanding there was no complaint filed with NRPD as this is a matter for Yonkers PD, however, there may be communications between the NRPD and the City School District of New Rochelle regarding this matter. I would like to obtain any emails or related records about this matter.
Here is the relevant text of the actual emails from Mr. Kern:
December 5, 2019
I acknowledge receipt of your Freedom of Information Law (“FOIL”) request dated November 26, 2019, which I received via e-mail on November 26, 2019.
Due to the nature of the materials sought, the District will respond to your request by either granting or denying the request in whole or in part within approximately twenty (20) business days from the date of this acknowledgment.
January 8, 2020
Due to the voluminous nature of the materials sought and the potential need for redactions, the District will require an additional twenty (20) business days from the date of this acknowledgment letter.
February 4, 2020
In reference to your Freedom of Information Law request re: New Rochelle Football Coach Lou DeRienzo, dated November 26, 2019, and further to my e-mail to you dated January 8, 2020. Please be advised that at this time, the District is still in the process of reviewing documents that may be responsive to your request. We are requesting an extension of twenty (20) additional business days from the date of this e-mail.
March 3, 2020
In reference to your Freedom of Information Law request re: New Rochelle Football Coach Lou DeRienzo, dated November 26, 2019, and further to my emails to you dated January 8, 2020 and February 4, 2020. Please be advised that at this time, the District is still in the process of reviewing documents that may be responsive to your request. We are also in the midst of preparing the School Budget, therefore, we are requesting an extension of twenty (20) additional business days from the date of this email.
April 14, 2020
As you are aware, School Districts have been closed in accordance with Executive Orders 202.4, 202.11 and 202.14 Accordingly, the District has determined that it will require an additional thirty (30) business days within which to respond to your request. We anticipate responding to your request on or before May 27, 2020.
May 27, 2020
In reference to your Freedom of Information Law request dated November 26, 2019, and further to my emails to you dated December 5, 2019, January 8, 2020, February 4, 2020, March 3, 2020 and April 14, 2020 please be advised that at this time, the District is still in the process of reviewing documents that may be responsive to your requests. As you are aware, School Districts have been closed in accordance with Executive Orders 202.4, 202.11, 202.14, 202.18 and 202.28 Accordingly, the District has determined that it will require an additional thirty (30) business days within which to respond to your request. Accordingly, your request will be granted or denied, in whole or in part, on or before July 7, 2020.
July 7, 2020
I am writing to you in reference to your Freedom of Information Law request dated November 26, 2019, and further to my emails to you dated December 5, 2019, January 8, 2020, February 4, 2020, March 3, 2020, April 14, 2020 and May 27, 2020, please be advised that at this time, the District is still in the process of reviewing documents that may be responsive to your requests. Due to the voluminous nature of the materials sought and the potential for redactions as well as the fact that School Districts have been closed in accordance with Executive Orders. The district has determined that it will require an additional twenty (20) business days within which to respond to your request.
August 4, 2020
I am writing to you in reference to your Freedom of Information Law request dated November 26, 2019, and further to my emails to you dated December 5, 2019, January 8, 2020, February 4, 2020, March 3, 2020, April 14, 2020, May 27, 2020 and July 7, 2020 please be advised that at this time, the District is still in the process of reviewing documents that may be responsive to your requests. Due to the voluminous nature of the materials sought and the potential for redactions as well as the fact that School Districts have been closed in accordance with Executive Orders. The district has determined that it will require an additional twenty (20) business days within which to respond to your request.
END
Having read this I hope each of your will appreciate my concerns, share in my apprehensions and join me in demanding full compliance with the law, either produce the records immediately or provide a valid reason for denying production of records for each and every FOIL request as of yet pending before Mr. Kern.
Thank you.
Robert Cox
Here are screenshots of the actual emails:
