As detailed in a prior post, my Freedom of Information Law (FOIL) request to the Ithaca City School District (ICSD) regarding Bassem Tamimi's appearance before third graders at the Beverly J. Martin School (BJM) encountered a completely unexpected problem:
In brief, and incredibly, the teachers union in the Ithaca school district appears to have instructed its members not to produce records responsive to my FOIL Request contained on personal electronic devices and email accounts....
So I went to court and obtained a Temporary Restraining Order preserving records pending a court determination on the merits.
After responsive motion papers from ICSD and the Ithaca Teachers Association [ITA], in which ITA disputed some of ICSD's allegations, and my reply, the case was argued on January 25, 2016, before the N.Y. State Supreme Court (the trial level court in NY) in Ithaca.
I was pro se in the case. ICSD was represented by a large Syracuse law firm, and ITA by the legal department of New York State United Teachers, the statewide teachers union.
In a decision issued today, the Court granted most of the relief I requested, including injunctive relief requiring ICSD to make specified efforts to obtain records contained on the personal electronic devices of ICSD employees. (Full embed at bottom of post.)
But first, some background for those of you not familiar with the third grade incident.
Tamimi 3rd Grade Event
You will recall that my report on the event exposed the anti-Israel nature of the presentation, as the ICSD Superintendent later acknowledged after his investigation.
The details are laid out in my post, Superintendent: Third Grade event "politically skewed, inflammatory" against Israel. The Superintendent's statement of condemnation reads, in part (emphasis added):
... The assumed purpose of the talk was to focus on human rights and peace. Upon further investigation, we have learned that the speakers went beyond the original intent of the talk. Additionally, school administration was not informed beforehand of the invitation to include one of the speakers....
In a closing statement of how students could help, a speaker spoke of solidarity and being freedom fighters for Palestine....
The Ithaca City School District's position is that such statements are not developmentally appropriate for third graders, nor aligned with the New York State standards. The statements were politically skewed, inflammatory, and not endorsed by the Ithaca City School District.
Tamimi is the Palestinian activist best known for using children, including his own. to confront Israeli soldiers in the hope the soldiers will react and create a viral video and photographic moment.
Tamimi confirmed after the event that when he urged the third graders to become "freedom fighters for Palestine" he meant for them to become pro-Palestinian activists.
FOIL Request and Temporary Injunction
In late September, 2015,I served a FOIL request seeking all documents regarding the Tamimi appearance.
On November 3, 2015, ICSD finally produce records pursuant to my FOIL Request, some of the documents were heavily redacted, and others withheld.
I addressed this production in my post, New docs reveal Third Grade Anti-Israel event much worse than thought.
ICSD also indicated in its November 3 response that it was in the process of gathering records from individual employees:
"We asked school employees to provide any and all records in their possession that fit within the parameters of your FOIL request, regardless of where those records are located, including but not limited to records maintained by them on their personal computers, cell phones and/or other personal storage devices. To date, we have not heard back from some of those employees....However, it is at least possible that additional responsive records may be uncovered."
On December 1, 2015, ICSD dropped a bombshell — The Ithaca Teachers Association allegedly had instructed its members not to turn over to ICSD documents responsive to my FOIL request that were on personal electronic devices and personal email.
I had no choice but to seek court intervention. I filed a "special proceeding" to preserve records pursuant to NY Civil Practice Law and Ruls 3102(c):
(c) Before action commenced. Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order. The court may appoint a referee to take testimony.
I filed a Verified Petition, setting forth many of the details discussed above plus more of the history.
I also filed a request for an Order to Show Cause, which essentially is a type of motion procedure, and also requested temporary injunctive relief.
The Court granted my relief. After setting down a timetable for the full motion to be heard, the Court granted the Temporary Restraining Order, as follows (full order at bottom of post):
And it is further ORDERED, that pending hearing and decision on this Order to Show Cause and pending further Order of this Court, that:
- ICSD and ITA and all of their employees and persons under their control are enjoined and prohibited from destroying, deleting, damaging or secreting any and all records, including but not limited to records contained on personal electronic devices, computers, cell phones and storage devices, and personal email accounts, related to the appearance of Bassem Tamimi at the Beverly J. Martin School (the "Tamimi Event");
- Within one business day after service of this order upon it, ICSD shall provide a copy of this Order to all administrators, staff and teachers at the Beverly J. Martin School, and to all other persons employed by or under the control of ICSD who ICSD believes may have records related to the Tamimi Event. Within three business days thereafter, ICSD shall file proof with the Court that it has complied with this paragraph.
Court Grants Permanent Injunctive Relief
After extensive briefing and oral argument, in which ICSD and ITA disputed each other's accounts of what happened, the Court ruled. Below are excerpts from the court Decision, Order and Judgment.
The Court first rejected the claims that I had no right to request injunctive relief, and that ITA was not a proper party:
Moreover, ICSD's argument would leave petitioner without a remedy to guard against the potential for destruction of records in this case. ICSD concedes that records maintained on personal devices are subject to FOIL disclosure, and, in fact, it made efforts to obtain any such records that may exist (see e.g. Verba Affidavit, Exhibits A, D). In light of the December 1, 2015 final response by ICSD to petitioner's first FOIL request – which advised that ITA had informed ICSD that any records sent or received on a member's personal devices were personal and would not be provided to ICSD for review – petitioner had a reasonable basis for his concern that such records would be deleted or otherwise destroyed and not provided to him through the FOIL process. ICSD argues that petitioner was unable to commence an article 78 FOIL proceeding – in which he may have been able to seek interim injunctive relief – at that time because he was still awaiting decision on the administrative appeal that he had filed. Thus, if an article 78 FOIL proceeding had been his sole remedy, he would have had no vehicle for seeking judicial assistance to preserve records stored on employees' personal devices pending completion of the FOIL process. Therefore, this proceeding to preserve information was properly commenced, pursuant to CPLR 3102(c).
ITA argues that it is not a proper party to this proceeding because it has no obligations under FOIL. While it is true that ITA has no direct obligations under FOIL because it is not a public agency, this is not a FOIL proceeding. Moreover, ITA inserted itself into the process by providing its members with advice about how they should respond to ICSD's request for records subject to FOIL disclosure and by communicating directly with ICSD about the existence of responsive records. ITA may have originally advised its members that records sent or received on their personal devices were personal records, and not ICSD records, even if they involved ICSD business. ITA has acknowledged that its members were obligated to follow the lawful directives of ICSD and that it provided advice to several members about meeting such obligations. ITA President Piasecki certified to ICSD that all responsive documents were delivered in October 2015 (see Verba Affidavit, Exhibit F). Accordingly, ITA is a proper party to this proceeding seeking preservation of information.
The Court then ruled that I was not entitled to take depositions, but granted relief requiring ICSD to seek out the records:
The relief available to petitioner in this proceeding must be commensurate with the relief that would be available to him under FOIL; he may not expand the scope of substantive relief by bringing a proceeding pursuant to CPLR 3102(c) rather than FOIL. Under FOIL, it is CSD's obligation to identify any records that may be responsive to petitioner's FOIL request, to review the records assembled to determine whether any exemptions may apply, and to issue a response; there is no provision permitting a requesting party to actively participate in that process. Thus, petitioner's request that he be permitted to engage in discovery by examining witnesses under oath and issuing subpoenas must be, and hereby is, denied.
In crafting appropriate relief, it bears emphasizing that ICSD has determined that records maintained on personal devices are subject to FOIL disclosure, and that all parties have conceded that ICSD employees have the duty to cooperate with their employer in the FOIL process. However, there is presently no proof suggesting that ICSD spoke directly with employees who were involved in the Tamimi event or inspected their personal devices or accounts to obtain information that may be responsive to petitioner's FOIL request. Rather, to date, ICSD has improperly relied only upon certification from ITA President Piasecki that all records responsive to petitioner's FOIL request that may exist on employees' personal devices have been provided. Accordingly, in an effort to ensure that appropriate efforts are made to preserve information that may be responsive to petitioner's FOIL request pending completion of the FOIL process, it is
1. All records responsive to petitioner's FOIL request shall be preserved on personal devices of ICSD employees, and on devices under the control of ITA or its members, until such time as copies have been delivered to ICSD.
2. ICSD employees with information responsive to petitioner's request shall reasonably and promptly cooperate with ICSD in identifying such records and providing copies to ICSD in
accordance with this decision, order and judgment.
3. ITA and its employees and officers shall promptly provide ICSD with copies of any records in their possession that are responsive to petitioner's FOIL request.
4. ICSD shall establish a procedure for conferring personally with each employee who was involved in scheduling or overseeing the Tamimi event to determine whether their respective
personal devices contain any records that may be responsive to petitioner's request. Employees may have counsel and/or an ITA representative present during that process. Upon completion of that process, and within 30 days from the date of this decision, order and judgment, ICSD shall provide petitioner with a further FOIL response: (a) describing the process used to determine whether any such records exist; (b) identifying any employees who were interviewed; (c) identifying additional records, if any, that may be located; and (d) providing petitioner with copies of any identified records, or, if all or part of any record is to be withheld, a statement of the reasons therefor.
5. Except as specifically provided herein, the petition is denied.
6. ITA's cross-motion seeking vacatur of the TRO ab initio is denied.
7. In light of the provisions made herein for preservation of information that may be responsive to petitioner's FOIL request, the TRO is hereby vacated.
This was Round One. The next round is for us to file what is called an "Article 78" proceeding to obtain the records ICSD has refused to turn over, or has redacted. One record in particular at issue is a video recording of the event by the local activists, a copy of which they gave to ICSD, but which ICSD refuses to provide to me.
So this was an important victory, but it's not the end.
I'm seeking pro bono counsel to handle the Article 78 proceeding.
I also want to give a shout out to Legal Insurrection reader and attorney Akiva M. Cohen, Kamerman, Uncyk, Soniker, & Klein P.C., who provided valuable assistance with regard to the injunction action.