The NY POST Sues The New York City Department of Education For Freedom of Information (FOIL) Violations

Congratulations to the New York POST (NYPOST) newspaper, and reporters Susan Edelman, Aaron Short, and Yoav Gonen, for filing a petition against the NYC DOE for FOI Law violations!

As an Editor, writer, and a person who files countless FOI requests of the Department I know how the NYC DOE illegally denies access to documents, videos, letters and other information they simply do not want the public to see. The disdain of the NYC DOE for the law is shocking.

Betsy Combier
betsy.combier@gmail.com

Betsy Combier
Editor, ADVOCATZ.com
Editor, ADVOCATZ blog
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, NYC Rubber Room Reporter
Editor, NYC Public Voice
Editor, National Public Voice
Editor, Inside 3020-a Teacher Trials

Here is the Petition:

PLEASE TAKE NOTICE that, upon the annexed Verified Petition and Complaint, the exhibits attached thereto, the Affidavit of Jeremy A. Chase, and the memorandum of law in support of the Petition, Petitioners NYP Holdings, Inc., Susan Edelman, Aaron Short, and Yoav Gonen will move this Court at the New York State Supreme Court, New York County Courthouse, located at 60 Centre Street, New York, New York 10007, in the Motions Submission Part, Room 130, at 9:30 a.m. on September 16, 2016, or as soon thereafter as counsel may be heard for an Order and Judgment pursuant to Article 78 of the Civil Practice Law and Rules and Section 3001 of the Civil Practice Law and Rules for the relief demanded in the annexed Verified Petition and Complaint.

PLEASE TAKE FURTHER NOTICE that, pursuant to N.Y.C.P.L.R. § 7804,
Respondents’ answer, if any, must be served upon the undersigned by September 12, 2016 and
Petitioners’ reply, if any will be served on September 15, 2016.

Petitioners-Plaintiffs NYP Holdings, Inc. (“NYP”), Susan Edelman, Aaron Short, and Yoav Gonen (collectively, “Petitioners”), for their verified petition for judgment pursuant to Article 78 of the New York Civil Practice Law and Rules, and their complaint seeking a declaratory judgment pursuant to N.Y.C.P.L.R. § 3001, by and through their undersigned counsel, respectfully allege as follows:

PRELIMINARY STATEMENT

1. This hybrid Article 78 petition and Complaint against the New York City Department of Education and Carmen Fariña, as Chancellor of the New York City Department of Education (collectively “Respondents” or “DOE”) arises out of Respondents’ repeated failure to determine whether to grant or deny access to information Petitioners have requested as is required by the Freedom of Information Law (“FOIL”). Instead, Respondents have engaged in a pattern and practice of unilaterally granting themselves repeated extensions of time to respond to FOIL requests ad infinitum, thereby flouting their duty under FOIL to make their records available to the public.
2. FOIL requires that within five business days of the receipt of a request for records, an agency must “make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied.” N.Y. Pub. Off. Law § 89(3)(a) (emphasis added).
Joe Baranello
3. Since September 2014, Petitioners have submitted a number of FOIL requests to DOE. In each case, DOE Central Records Access Officer & Agency Attorney Joseph A. Baranello has acknowledged receipt of the request by letter and stated that “a response is currently anticipated by [x date].”
4. Not once, however, have Respondents granted or denied the request by the anticipated date, and instead Mr. Baranello has sent the following form letter, again and again:
This letter concerns the above-referenced Freedom of Information Law (FOIL) request. Pursuant to section VI.B of Chancellor’s Regulation D-110, 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 by [x date].

(hereinafter the “Form Delay Letter”).

5. This Form Delay Letter offers no legally-cognizable explanation for DOE’s unilateral delays in determining whether it will grant or deny a request. Nor does the Form Delay Letter offer an approximate date that is “reasonable under the circumstances of the request.” N.Y. Pub. Off. Law § 89(3)(a). Instead, Respondents completely ignore the circumstances of the request and, without any consideration of how long the determination of whether to grant or deny a particular request should reasonably take or the particular factors that may affect the time for a decision, kick the proverbial can down the road to the Petitioners’ and the public’s detriment.
6. Petitioners are left in limbo – their requests neither granted nor denied – with the only certainty being the receipt of another monthly Form Delay Letter from Respondents gifting themselves more time and abdicating their statutory duty to make their records available to the public. All the while, the Petitioners and the public are left in the dark about the workings and failings of their government.
7. Recognizing that Respondents refuse to even determine whether Petitioners’ requests should be granted or denied – let alone provide Petitioners with the requested documents – in May 2016 Petitioners construed Respondents’ excessive delays in responding as constructive denials of their requests and filed administrative appeals of the constructive denials with the DOE (Ms. Edelman and Mr. Short on May 18, 2016 and Mr. Gonen on May 24, 2016). At the time of filing their administrative appeals, Petitioners were collectively waiting for Respondents to grant or deny twelve separate FOIL requests – five (5) for Ms. Edelman, four (4) for Mr. Short, and three (3) for Mr. Gonen. Petitioners had received between three (3) and fourteen (14) Form Delay Letters for each request, and had been waiting for between four (4) and twenty (20) months for responses to each request. As of the date of this Petition, Petitioners have been awaiting a “yes” or a “no” on each of the remaining ten outstanding requests for between more than six (6) months and more than twenty (20) months.
8. In decisions dated June 6, 2015 and June 8, 2015, the First Deputy General Counsel of the DOE Judy Nathan, on behalf of Respondents, rejected Petitioners’ administrative appeals, finding that the requests had not been constructively denied and were not ripe for review. Ms. Nathan reasoned that because Respondents continued to send monthly extension letters with new “approximate date[s]” for the agency to respond, and because the Chancellor’s Regulation D-110(VIII)(A) considers a request constructively denied only when the request is neither granted nor denied “within the time limits set forth . . . in the acknowledgment letter or
any extension letter(s) . . . ,” no constructive denial could occur so long as DOE continued to send Form Delay Letters.
9. The Chancellor’s Regulation which provides for unlimited “extension letter(s)” is an invalid usurpation of legislative authority, as it is inconsistent with the language and the legislative purpose of Public Officers Law § 89(3)(a) and the Committee on Open Government’s implementing regulations (the “Implementing Regulations”), neither of which authorizes multiple unilateral extensions of time to grant or deny the request.
10. If this provision of the Chancellor’s Regulation is allowed to stand – or if Respondents’ actions here in taking repeated unilateral pro forma extensions of their time to grant or deny a request is condoned as “reasonable under the circumstances of the request(s)” – the entire FOIL would be rendered meaningless and agencies could avoid (or in DOE’s case, continue to avoid) providing public records merely by sending the same pat letter month after month – and avoid any administrative or judicial review by claiming their extensions are not constructive denials.
11. Having now exhausted their administrative remedies, Petitioners now seek (1) a declaration pursuant to CPLR § 3001 that Chancellor’s Regulation D-110(VIII)(A) is invalid and contrary to FOIL and the Implementing Regulations, and that the DOE’s practice of granting itself serial unilateral extensions of time to respond to FOIL requests is unlawful and tantamount to a constructive denial; and (2) an Order pursuant to Article 78 of the New York Civil Practice Law and Rules, directing the DOE to produce all disclosable records responsive to Petitioners’ ten outstanding requests1 within twenty (20) days of the Court’s order; and (3) award Petitioners their the costs and fees, together with such other and further relief the Court deems just and proper.

PARTIES

12. Petitioner NYP Holdings, Inc. is a corporation organized and existing under the laws of Delaware with its principal place of business at 1211 Avenue of the Americas, New York, New York, 10036-8790. NYP Holdings, Inc. is the publisher of the New York Post (the “Post”), the oldest, continuously published daily newspaper in the United States, having first been published by Alexander Hamilton in 1801. Today, the Post is sold in many states in the United States, both at newsstands, by subscription, and digitally via the Internet.
13. Petitioner Susan Edelman is an investigative reporter for the New York Post Sunday edition who covers a variety of news beats including education news. She has reported extensively on education spending, teacher pay, misconduct in education, and a host of other topics of significant public interest.
14. Petitioner Aaron Short is an investigative reporter for the New York Post Sunday edition covering government. Between January 2014 and June 2015 he covered education and state government for the Post’s daily edition. In both roles, he has reported on various issues of significant public interest relating to education and the New York City Department of Education.
15. Petitioner Yoav Gonen is an investigative reporter and the City Hall Bureau Chief for the New York Post. In this role, he has reported extensively on various issues of significant public interest relating to public education and the New York City Department of Education.


footnote1: Since Ms. Edelman and Mr. Short filed their administrative appeal, perhaps fearing this action, Respondents have granted in part two of the nine FOIL requests at issue on their appeal – F#11,479 on May 27, 2016 and F#10,586 on June 17, 2016. The Requests, however, are relevant to Petitioners’ request for declaratory relief under CPLR § 3001.

16. Respondent the New York City Department of Education consists of the Board of Education of the City School District of the City of New York, also known as the Panel for Educational Policy, established by Educ. Law § 2590(b), the Chancellor, and other school employees.2 DOE is an “agency” within the meaning of Public Off. Law § 86(3). Its principal office is located at 52 Chambers Street, Room 308, New York, NY 10007.
17. Respondent Carmen Fariña is the Chancellor of the DOE and is charged with administration of New York City’s public schools, including the provision of academic standards, student placement, school funding, and teacher recruitment. Her principal office is located at 52 Chambers Street, New York, NY 10007.

JURISDICTION & VENUE

18. This Court has jurisdiction pursuant to C.P.L.R. § 7801 et seq. to review the actions by bodies or officers who have failed to perform a duty enjoined on them by law.
19. The court also has jurisdiction pursuant to C.P.L.R. § 3001 to render declaratory relief.
20. Venue properly lies in New York County pursuant to CPLR § 506(b) and CPLR § 7804(b) because that is where DOE’s principal office is located and because it is within the judicial district wherein DOE made the determinations petitioned against and complained of and where it refused to perform the duties specifically enjoined upon it by law.

STATEMENT OF FACTS

I. THE FIRST REQUEST (F#10,586)

21. On September 23, 2014, Mr. Short requested the following records from the DOE


footnote 2: See DOE, Bylaws of the Panel for Educational Policy of the Department of Education of the City School District of the City of New York, http://schools.nyc.gov/AboutUs/leadership/PEP/bylaws/default.htm (last visited Jun. 28, 2016).
(the “First Request”): a list of public school teachers, sorted by school, who have taken between 11 and 20 days off from school in the 2013-2014 school year, and a list of teachers who have taken 20 or more days off. A true and correct copy of the First Request is attached hereto as Exhibit 1.
22. DOE is required to maintain this record. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to employee absences or accruals, employee’s time records covering leave, absences, hours worked and scheduling, vacation schedules, report of absence and request for leave without pay).
23. On September 30, 2014, Mr. Baranello sent a letter to Mr. Short acknowledging receipt of his request and stating that DOE anticipated providing a response by October 29, 2014. A true and correct copy of the September 30, 2014 letter is attached hereto as Exhibit 2.
24. On October 29, 2014, however, instead of receiving a determination of whether the request was granted or denied, Mr. Short received a Form Delay Letter from Mr. Baranello stating that “a response is currently anticipated by December 1, 2014.” Over the next several months, Mr. Baranello sent a series of identical Form Delay Letters to Mr. Short granting DOE unilateral extensions of its time to grant or deny the request to the following new anticipated dates:
• February 2, 2015,

• March 31, 2015,

• April 28, 2015,

• May 27, 2015,

• June 24, 2015,

• September 18, 2015,

• October 19, 2015,

• November 17, 2015,

• December 17, 2015,

• January 21, 2016,

• February 19, 2016,

• March 18, 2016, and

• April 15, 2016.

True and correct copies of the Form Delay Letters related to the First Request are attached hereto as Exhibit 3.
25. At the time Mr. Short and Ms. Edelman filed their administrative appeal on May 18, 2016, the April 15, 2016 deadline had passed and Mr. Short had received neither a substantive response nor even another Form Delay Letter from Respondent.
26. On June 17, 2016, a month after the appeal was filed, more than two months after the most recent “approximate date” for DOE to grant or deny the request had passed, and twenty
one (21) months after Mr. Short filed his initial request, Petitioners received a response from Respondent, granting in part the First Request. Mr. Short was provided with a single excel spreadsheet with the name of every teacher redacted. The amount of time it took to review and redact this single document – Respondents’ stated reason for the delay other than the volume of other requests – took only as long as it would take to type the word “REDACTED” and paste it into two columns of a spreadsheet. A true and correct copy of the Response to the First Request is attached hereto as Exhibit 4.
27. Because DOE took so long to respond to the First Request, the information sought in the request for the 2013-2014 school year is now stale. As a result, Petitioners did not appeal this partial denial.

II. THE SECOND REQUEST (F#10,764)

28. On November 20, 2014, Mr. Short requested the following records from the DOE (the “Second Request”): a list or spreadsheet of arrests of DOE employees and the type of crime or non-criminal incident for which they were charged from January 1, 2010 to November 20, 2014. A true and correct copy of the Second Request is attached hereto as Exhibit 5.
29. DOE is required to maintain this record. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to investigative records and disciplinary proceedings, personnel-related records of reports of allegations of child abuse against school employees and volunteers in an “educational setting”).
30. On December 1, 2014, Mr. Baranello sent a letter to Mr. Short acknowledging receipt of his request and stating that DOE anticipated providing a response by December 31, 2014. A true and correct copy of the December 1, 2014 letter is attached hereto as Exhibit 6.
31. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Mr. Short a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• February 2, 2015,

• March 31, 2015,

• April 28, 2015,

• May 27, 2015,

• June 24, 2015,

• August 20, 2015,

• September 18, 2015,

• October 19, 2015,

• November 17, 2015,

• December 17, 2015,

• January 21, 2016,

• February 19, 2016,

• March 18, 2016, and

• April 15, 2016.

32. At the time Mr. Short and Ms. Edelman filed their administrative appeal on May 18, 2016, the April 15, 2016 deadline had passed and Mr. Short had received neither a substantive response nor even another Form Delay Letter from Respondent.
33. Then, after Mr. Short and Ms. Edelman filed their administrative appeal and almost three months after the most recent “anticipated date” for DOE to respond had passed, DOE sent a fifteenth (15) Form Delay Letter granting itself yet another unilateral extension until
• July 12, 2016.

True and correct copies of the Form Delay Letters related to the Second Request are attached hereto as Exhibit 7.
34. As of the date of this Petition, July 12, 2016 came and went with no response.

This request has been outstanding for more than twenty (20) months.

III. THE THIRD AND FOURTH REQUESTS (F #11,061, F#11,068)

35. On March 4, 2015, Mr. Gonen requested the following records from the DOE (the “Third Request”): a copy of all e-mails sent and received by DOE Press Secretary Devora Kaye on March 3, 2015. A true and correct copy of the Third Request is attached hereto as Exhibit 8.
36. On March 6, 2015, Mr. Gonen requested the following records from the DOE (the “Fourth Request”): a copy of all e-mails sent and received by Ms. Kaye on March 2, 2015. A true and correct copy of the Fourth Request is attached hereto as Exhibit 9.
37. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records for which a FOIL request has been received).
38. On March 11, 2015, Mr. Baranello sent a letter to Mr. Gonen acknowledging receipt of the Third and Fourth Requests, and stating that DOE anticipated providing a response to both by April 7, 2015. A true and correct copy of the March 11, 2015 letter is attached hereto as Exhibit 10.
39. Instead of receiving a determination of whether the requests were granted or denied, Mr. Baranello sent Mr. Gonen a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the requests to the following new anticipated dates:
• May 5, 2015,

• June 3, 2015,

• July 1, 2015,

• July 30, 2015,

• August 27, 2015,

• September 25, 2015,

• October 26, 2015,

• December 28, 2015,

• January 26, 2015 [sic],

• February 26, 2016,

• March 25, 2016,

• April 22, 2016, and

• May 20, 2016.

40. After Mr. Gonen filed his administrative appeal and DOE denied it, DOE sent three additional Form Delay Letters for a total of sixteen (16) Form Delay Letters granting itself
further unilateral extensions until:

• June 20, 2016,

• July 19, 2016, and

• August 16, 2016.

True and correct copies of the Form Delay Letters related to the Fourth Request are attached hereto as Exhibit 11.
41. As of the date of this Petition, this request has been outstanding for more than seventeen (17) months.

IV. THE FIFTH REQUEST (F#11,115)

42. On March 17, 2015, Mr. Gonen requested the following records from the DOE (the “Fifth Request”): a breakdown of the reason for/method of departure for each of the 291 educators/staffers in the ATR (“Absent Teacher Reserve”) pool that Mayor de Blasio has said repeatedly have been “moved” out of the schools system since April 2014, including the teacher’s name, location of last teaching assignment, and reason for/method of departure, as well as copies of any related stipulations of settlement or expedited 3020-A hearing reports. A true and correct copy of the Fifth Request is attached hereto as Exhibit 12.
43. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records for which a FOIL request has been received, as well as records related to substitute teacher registries and terminations).
44. On March 13, 2015, four days prior to submitting the Fifth Request, Mr. Gonen e-mailed Jason Fink of the DOE’s Press Office asking him to provide the same list he later requested in the first part of the Fifth Request. On March 17, 2015, Mr. Fink contacted Mr. Gonen to tell him, “So apparently you have a FOIL request in that seems to cover this.” In response, Mr. Gonen wrote, “It’s true. That doesn’t preclude you from answering sooner. I’d cancel the foil if so.” A true and correct copy of this e-mail chain is attached hereto as Exhibit 13. On March 20, 2015, Mr. Fink sent Mr. Gonen an e-mail containing a chart of the ATR exits with minimal detail in response to Mr. Gonen’s earlier e-mail to the Press Office. This information was provided completely independent of the FOIL process. A true and correct copy of Mr. Fink’s e-mail is attached hereto as Exhibit 14.
45. On March 24, 2015, Mr. Baranello sent a letter to Mr. Gonen acknowledging receipt of his FOIL request, observing that a portion of the request had already been provided to Mr. Gonen, and stating that DOE anticipated providing a response to the remainder of the request by April 20, 2015. A true and correct copy of the March 24, 2015 letter is attached hereto as Exhibit 15.
46. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Mr. Gonen a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• May 18, 2015,

• June 16, 2015,

• July 15, 2015,

• August 12, 2015,

• September 10, 2015,

• October 8, 2015,

• December 9, 2015,

• January 12, 2016,

• March 10, 2016,3

• April 7, 2016,

• May 5, 2016, and

• June 3, 2016.

47. After Mr. Gonen filed his administrative appeal and DOE denied it, DOE sent three additional Form Delay Letters for a total of fifteen (15) Form Delay Letters granting itself further unilateral extensions until:

• July 1, 2016,

• August 1, 2016, and

• August 29, 2016.

True and correct copies of the Form Delay Letters and Mr. Gonen’s e-mail exchange with Mr. Mantell about delays related to the Fifth Request are attached hereto as Exhibit 16.
48. As of the date of this Petition, this request has been outstanding for just under seventeen (17) months.

V. THE SIXTH REQUEST (F#11,479)

49. On July 6, 2015, Ms. Edelman requested the following records from the DOE (the “Sixth Request”): records on the re-scoring of the Regents exams in New York City schools including all records of requests by New York City superintendents and other personnel to re- score the January 2015 Regents exams. A true and correct copy of the Sixth Request is attached hereto as Exhibit 17.

footnote 3: On February 22, 2016, well over a month after DOE’s most recent anticipated date of response (January 12, 2016) had passed, Mr. Gonen wrote to Will Mantell of the DOE press office who sends all FOIL responses on behalf of Mr. Baranello, and asked “hey Will, have you sent anything since this notice? I don’t see anything if you did,” to which Mr. Mantell responded, “Doesn’t look like it. I’ll look into it tmo.” This email exchange is included as part of Exhibit 16.

50. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to Regents exam test results).
51. On July 13, 2015, Mr. Baranello sent a letter to Ms. Edelman acknowledging receipt of her request and stating that DOE anticipated providing a response by August 10, 2015. A true and correct copy of the July 13, 2015 letter is attached hereto as Exhibit 18.
52. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Ms. Edelman a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:
• September 8, 2015,

• November 4, 2015,

• December 7, 2015,

• January 8, 2016,

• February 8, 2016,

• March 25, 2016, and

• May 20, 2016.

True and Correct copies of the Form Delay Letters related to the Sixth Request are attached hereto as Exhibit 19.
53. On May 27, 2016, a week after the most recent “anticipated date” for DOE to respond had passed, ten days after Mr. Short and Ms. Edelman filed their appeal, and more than ten (10) months after she filed her initial request, Ms. Edelman received a response from Respondent, granting in part her request. Ms. Edelman was provided with a single excel spreadsheet. The amount of time it took to review and redact this automatically generated
information – DOE’s stated reason for the delay other than the volume of other requests – took only as long as it would take to type the word “REDACTED” and paste it into three columns of a spreadsheet. A true and correct copy of the Response to the Sixth Request is attached hereto as Exhibit 20.
54. As with the First Request, because DOE took so long to respond to the Sixth Request, the information sought in the request is now stale. As a result, Petitioners did not appeal this partial denial.

VI. THE SEVENTH REQUEST (F#11,571)

55. On August 12, 2015, Ms. Edelman requested the following records from the DOE (the “Seventh Request”): copies of reports completed or finalized since January 1, 2014 by the Office of Special Investigation (OSI). A true and correct copy of the Seventh Request is attached hereto as Exhibit 21.
56. Among its various responsibilities, the OSI investigates allegations of improper and unlawful behavior, including corporal punishment, verbal abuse against students, and various other forms of misconduct in the DOE. The DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to child abuse or maltreatment reports and related records and complaints about use of corporal punishment against students).
57. On August 19, 2015, Mr. Baranello sent a letter to Ms. Edelman acknowledging receipt of her request and stating that DOE anticipated providing a response by September 17, 2015. A true and correct copy of the August 19, 2015 letter is attached hereto as Exhibit 22.
58. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Ms. Edelman a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:

• October 16, 2015,

• November 16, 2015,

• December 16, 2015,

• January 20, 2016,

• February 18, 2016,

• April 14, 2016,

• May 12, 2016, and

• June 10, 2016.

59. After Mr. Short and Ms. Edelman filed their administrative appeal and DOE denied it, DOE sent four additional Form Delay Letters for a total of twelve (12) Form Delay Letters granting itself further unilateral extensions until:

• July 11, 2016,

• July 25, 2016,

• August 8, 2016, and

• August 22, 2016.

True and correct copies of the Form Delay Letters related to the Sixth Request are attached hereto as Exhibit 23.
60. As of the date of this Petition, this request has been outstanding for just under twelve (12) months.

VII. THE EIGHTH REQUEST (F#11,677)

61. On October 2, 2015, Mr. Short requested the following records from the DOE (the “Eighth Request”): payroll records for Renewal School Superintendent Amy Horowitz and all staff who work with Ms. Horowitz on the Renewal School initiative for 2015, or for the 2014-2015 school year. A true and correct copy of the Eighth Request is attached hereto as Exhibit 24.
62. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of payroll records). Further, one of the few exceptions to the FOIL’s rule that agencies do not need to create records to respond to a FOIL request is that every agency is required to create “a record setting forth the name, public office address, title and salary of every officer or employee of the agency.” Pub. Off. Law. § 87(3)(b).
63. On October 9, 2015, Mr. Baranello sent a letter to Mr. Short acknowledging receipt of his request and stating that DOE anticipated providing a response by November 9, 2015. A true and correct copy of the October 9, 2014 letter is attached hereto as Exhibit 25.
64. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Mr. Short a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:

• December 10, 2015,

• February 11, 2016,

• April 8, 2016, and

• May 6, 2016.

65. At the time Mr. Short and Ms. Edelman filed their administrative appeal on May 18, 2016, the May 6, 2016 deadline had passed and Mr. Short had received neither a substantive response nor even another Form Delay Letter from Respondent.
66. Nevertheless, after Mr. Short and Ms. Edelman filed their administrative appeal and a month after the most recent “anticipated date” for DOE to respond had passed, DOE sent three additional Form Delay Letters for a total of seven (7) Form Delay Letters granting itself further unilateral extensions until:

• July 5, 2016,

• August 2, 2016, and

• August 30, 2016.

True and correct copies of the Form Delay Letters related to the Eighth Request are attached hereto as Exhibit 26.
67. As of the date of this Petition, this request has been outstanding for more than ten (10) months.

VIII. THE NINTH REQUEST (F#11,856)

68. On December 2, 2015, Ms. Edelman requested the following records from the DOE (the “Ninth Request”): records of disciplinary action involving school bus drivers and “matrons” or other such aides since December 1, 2014. A true and correct copy of the Ninth Request is attached hereto as Exhibit 27.
69. DOE is required to maintain these records. See NYCRR tit. 8, Ch. IV, App. I (requiring retention of records relating to disciplinary proceedings).
70. On December 8, 2015, Mr. Baranello sent a letter to Ms. Edelman acknowledging receipt of her request and stating that DOE anticipated providing a response by January 11, 2016. A true and correct copy of the December 8, 2015 letter is attached hereto as Exhibit 28.
71. Instead of receiving a determination of whether the request was granted or denied, Mr. Baranello sent Ms. Edelman a series of Form Delay Letters granting DOE unilateral extensions of time to grant or deny the request to the following new anticipated dates:

• February 9, 2016,

• March 9, 2016,

• April 6, 2016,

• May 4, 2016, and

• June 2, 201