FOIL COVER LETTER to Governor Cuomo

January 30, 2015
The Honorable Andrew M. Cuomo
Governor of New York State
NYS State Capitol Building
Albany, NY 12224
1-518-474-8390

Records Access Officer
Sherry Hwang, FOIL Counsel
Executive Chamber State Capitol
Albany, NY 12224
Fax: 518-473-5153

E-mail: records.access@exec.ny.gov

Re: FOIL Request for Projected School Aid Runs 2015-16 for All NYS Public School Districts Statewide 

Dear Governor Cuomo:

NYS Allies for Public Education (NYSAPE), a coalition of 50 parent and educator groups state wide, calls upon the Governor’s Office to immediately release the 2015-16 state aid projections with the preliminary estimate of school aids payable under NYS Education Code section 3609, plus other aids.  For the school year 2015-16, we understand this to be the approximate $1.1 billion increase that you presented last week in your executive budget proposal should your reforms pass and $377 million increase proposed should your reforms not pass. Please accept the instant correspondence to serve as our objection to your publicly-stated refusal to disclose any and all school aid runs for 2015-16, and to condition same on our elected legislators’ approval of your proposed education reform agenda.  Our objection is based on the premise that this money represents NYS taxpayer funds, and involves the children in NYS public school districts and, accordingly, that the taxpayers of every school district in NYS are entitled to know how this money – our money — is being allocated.  We believe your actions fly in the face of democracy.  We believe this information should be made accessible to the public as a matter of course first and foremost based on principles of good faith and dealing and, second, pursuant to the democratic spirit and intent of open government as codified in the NYS Public Officers Law.  Accordingly, enclosed please find our FOIL demand to accompany this letter.

Governor Cuomo, not only is your decision to purposefully withhold the 2015-16 school aid runs, and to condition their disclosure on our elected legislators’ approval of your proposed education reforms, contrary to the spirit and intent of open government, and contrary to the public’s best interest, but it creates a hardship and undue burden on our already stressed local public school districts statewide, currently endeavoring to work diligently on their local budget development process before the May vote.  As you know, school aid runs address various categories of school spending, ranging from building aid to extra help for academics to transportation aid and even BOCES-related costs; and, as you are well aware, school aid runs provide important information to our local school districts – including local Boards of Education, administrations, and parents (and even some savvy students who monitor the process).  There is nary a school district in NYS that does not rely on state aid in some way and that does not account for state aid in their annual school budget.  Clearly, the public information that you are now purposefully withholding is crucial to the local budget development process for public school districts across NYS.  In addition, these school districts need this information in order to provide a proposed tax levy to the Office of the State Comptroller by March 1, so that the State, in turn, can calculate each district’s property-tax cap figure.  In the past — in complete contrast to this year — this public information was released in advance of the budget vote.  It should be no different this year.

Governor Cuomo, your decision to withhold the 2015-16 school aid runs is tantamount to holding our elected legislators, our local school districts, and our hard-working school boards hostage; it prejudices our public school superintendents and our local school boards and, ultimately, harms the most innocent in all of this — our students.  Tying the school aid runs to legislative approval of your proposed education reforms is in bad faith and simply unconscionable.  You know full well that, without this information, public school districts cannot properly plan their budgets for the upcoming school year, cannot properly advise and involve their local constituency in the process, and will be unable to make those increasingly all-too-familiar decisions about whether to cut yet more programs and staffing.  Historically, the public disclosure of school aid runs has been a matter of basic open government function, as it is recognized as being an essential part of an informed and democratic decision-making process within our communities.  Public school districts – and public school kids (and parents) — should not be used as pawns to further your political agenda.  NYSAPE hereby demands immediate disclosure of the 2015-16 school aid runs pursuant to the instant FOIL request.

Reviewing school aid runs during the budget process is a matter of due diligence and a duty that the State owes to its taxpayers (who, we might add, pay handsome school taxes) and to our public schools.  Governor Cuomo, we believe that school aid run records for 2015-16 exist and that you used them to help craft your proposed $1.1 billion increase to schools.  Indeed, it would be hard to imagine that you would propose a budget increase without first performing due diligence by creating and/or reviewing school aid runs.

If, however, we are mistaken, and your Office did not create or review 2015-16 school aid runs in crafting your instant budget proposal, then the State failed to conduct due diligence at the outset; we would deem this not only a failure, but also an act of bad faith.  The mere possibility that your Office would fail to consider school aid during the budget-making process is very disturbing.  To our minds, this would be tantamount to demonstrating your lack of concern as to 1) how your proposed budget would address the adequate funding needs of our public schools, and 2) how your proposed budget would be allocated among our many school districts.

Governor Cuomo, we strongly urge you and your new Budget Director Mary Beth Labate to rethink your decision to withhold the 2015-16 school aid runs for the executive budget based on whether your education reforms are enacted.  This tactic is undemocratic, it is manipulative, it is an abuse of power, and it is dysfunctional.  Most important, because it will inhibit the ability of our local superintendents and school boards to plan their budgets and make proper decisions regarding important programs and staffing, it ultimately serves to do harm to millions of New York’s public school children.  Given that the majority – if not all — of us within NYSAPE are parents of public school children, we find that to be the most egregious consequence of your decision.

NYSAPE respectfully requests that Governor Cuomo comply with our FOIL demand by releasing the 2015-16 school aid run record/s to your undersigned immediately.

Sincerely,

NYS Allies For Public Education
Public Access Committee Chair Members
Anna Shah, Deborah Brooks, and Lisa Rudley
(see below for the copied parties on these letters)

OFFICIAL FOIL LETTER (revised 1/30/15)
January 30, 2015

Records Access Officer 
Sherry Hwang, FOIL Counsel
Executive Chamber NY State Capitol
Albany, NY 12224
Fax: 518-473-5153
E-mail: records.access@exec.ny.gov 

Re: FOIL Request for Projected 2015-16 School Aid Runs for All NYS Public School Districts

Dear Records Access Officer Hwang:

NYS Allies for Public Education (NYSAPE), a coalition of 50 parent and educator groups statewide, calls upon the Governor’s Office to immediately release and make accessible to the public, any and all records relating to the 2015-16 state aid projections and/or corresponding school aid runs payable under NYS Education Code section 3609, plus other aids. Please accept the instant correspondence as our FOIL demand, pursuant to Article 6 of the NYS Public Officers Law §87(2)(g)(i) (Freedom of Information Law, or FOIL), along with corresponding opinions in the FOIL Advisory Opinion Index of the Committee on Open Government (COOG) relating to disclosure of “budget worksheets,” together with supporting case law.

We hereby request the following records:

“any and all information kept, held, filed, produced or reproduced by, with or for an agency or the Governor’s Office, in any form whatsoever including, but not limited to, records, communications, reports, statements, examinations, memoranda, opinions, folders, analysis, evaluations, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes”, relating to:

1) the Governor’s 2015-2016 NYS state aid school proposal, together with any and all 2015-16 state school aid runs, and/or any and all records referencing state aid that will possibly be allocated to NYS public school districts, and/or any and all public school budget-related records, that show all monies to be potentially allocated to New York State public school districts in 2015-16, based on the Governor’s 2015-16 executive budget proposal; AND

2) any and all 2015-16 school aid runs regarding NYS public school districts that, in part or in total, represent the allocations of approximately $1.1 billion increase in school aid to NYS public schools, as referenced by the Governor in his 2015-16 executive budget proposal, should the legislature agree to his education reform agenda; AND

3) any and all 2015-16 school aid runs regarding NYS public school districts that, in part or in total, represent the allocations of an approximately $377 million increase in state aid, as referenced by the Governor in his 2015-16 executive budget proposal, should the legislature not agree to his education reform agenda; AND

4) any and all 2015-16 school aid runs regarding NYS public school districts that, in part or in total, represent the allocations of an approximately $700 million increase in state aid, as referenced by the Governor in his 2015-16 executive budget proposal, should the legislature agree to his education reform agenda; AND

5) any and all budget worksheets, ledgers, etc., showing any and all allocations of money, funding, and/or state aid, that may be allocated to public schools across the state of New York in relation to the Governor’s 2015-16 executive budget proposal.

Robert Freeman, Esq., of the NYS Committee of Open Government, was consulted regarding the right to public access in NYS of the above-mentioned items.  According to our research, school aid runs constitute “records” that fall within the scope and coverage of FOIL; accordingly, the Governor’s Office is required to provide the requested school aid runs pursuant to a FOIL request.  Further, insofar as these records consist of numbers, and even though the numbers may be estimates or projections, those figures (numbers) are accessible pursuant to FOIL.  In the words of one state court, “budget worksheets” that included columns of numbers that were not, in the words of the court, reflective of “objective reality” rather, were estimates, essentially opinions or recommendations that appeared in the form of numbers, were found to constitute “statistical tabulations” available and accessible under FOIL.  See Public Officers Law §87(2)(g)(i), and opinions in the FOIL Advisory Opinion Index under “budget worksheets,” namely:

In a case involving “budget worksheets,” it was held that numerical figures, including estimates and projections of proposed expenditures, are accessible, even though they may have been advisory and subject to change.  “Statistical tabulations” are accessible under the Freedom of Information Law as originally enacted (see Dunlea v. Goldmark, 380 NYS 2d 496, aff’d 54 AD2d 446, aff’d 43 NY2d 754 [1977]). At that time, the Freedom of Information Law granted access to “statistical or factual tabulations” (see original Law, §88[1][d]). Currently, §87(2)(g)(i) requires the disclosure of “statistical or factual tabulations or data”. As stated by the Appellate Division in Dunlea:

“[I]t is readily apparent that the language statistical or factual tabulation was meant to be something other than an expression of opinion or naked argument for or against a certain position. The present record contains the form used for work sheets and it apparently was designed to accomplish a statistical or factual presentation of data primarily in tabulation form. In view of the broad policy of public access expressed in §85 the work sheets have been shown by the appellants as being not a record made available in §88″ (54 AD2d 446, 448).”

Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of ‘statistical or factual tabulations or data’ (Public Officers Law 87[2][g][i]. Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, 463 N.Y.S.2d 122, mod on other grounds, 61 NY2d 958, 475 N.Y.S.2d 272, 463 N.E. 2d 613; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182. 417 N.Y.S.2d 142)” (Gould v. New York City Police Department, 89 NY2d 267-276, 277 [1996]).  See: OML-AO-o5380 http://docs.dos.ny.gov/coog/otext/o5380.html

Also, please be reminded that according to the COOG, and case law, although an agency is not required to create a new record or provide information in response to questions to comply with the law, “the courts have held that an agency must provide records in the form requested if it has the ability to do so.”  http://www.dos.ny.gov/coog/Right_to_know.html

If the materials are available in a zip file format, we prefer that you kindly forward the materials in response to this request via email to: nys.allies@gmail.com 

However, if the records requested are available in digital format, NYSAPE will provide a flash drive and ask that the materials be made accessible in that format.  We understand there is a fee of $.25 per page for duplication of the records requested. If the fee exceeds $20.00, please contact your undersigned before duplicating the records.

As you know, the Freedom of Information Law requires that an agency respond to a request within five business days of receipt of a request.  Therefore, we would kindly appreciate a response as soon as possible and look forward to hearing from you shortly.

If, for any reason, any portion of NYSAPE’s FOIL request is denied, please inform the undersigned, in writing, of the reasons for the denial, and provide the name and address of the person or body to whom an appeal should be directed.

Sincerely,

NYS Allies For Public Education
Public Access Committee Chair Members
Anna Shah, Deborah Brooks, and Lisa Rudley

copied parties:      
NYS Board of Regents
Assembly Education Chair Catherine Nolan
Senate Education Chair John Flanagan
NYS Assemblyman Ed Ra
NYS Assemblyman Graf
NYS Assemblyman Dave McDonough 
NYS Assemblyman Dean Murray
Thomas P. DiNapoli, NYS Comptroller
Eric Schneiderman, NYS Attorney General
NYSPTA
NYSSBA
NYSCOSS
SAANYS
NYSUT
NYSASBO
NYSER
AQE