Aug 30, 2016 4:20 PM
By Greg Wehner-Southampton Press
The Southampton School District is facing a new lawsuit charging that it has failed to comply with the Freedom of Information Law—this time from the Press News Group.
The publishers of The Southampton Press, The East Hampton Press and the website 27east.com filed the lawsuit in State Supreme Court on Friday. The lawsuit seeks to compel the school district to release the results of an investigation—paid for with taxpayer dollars—of former Superintendent of Schools Dr. Scott Farina, which was conducted earlier this year and which eventually led to Dr. Farina’s resignation and a $300,000 payout as part of an agreement in April. Interim Superintendent Dr. Nicholas Dyno declined to comment on the suit on Monday.
The Press News Group is being represented by media law attorneys Rachel F. Strom and James E. Doherty of the Manhattan-based law firm Levine Sullivan Koch & Schulz, LLP. The memorandum of law filed this week, laying out the plaintiffs’ legal argument, notes that the information being sought “unquestionably [involve] matters of significant public concern.” It notes that the district’s “blanket refusal” to provide any information violates the Freedom of Information Law, or FOIL. “The significant public interest in such information … overwhelms any possible privacy interests here,” the Press News Group’s attorneys argue, citing case law.
The lawsuit also asks the court to award attorney fees to the plaintiffs if the court finds that the district violated FOIL. “The school district should be held to account and pay an actual price for their unlawful actions that embraced secrecy over transparency,” the lawsuit argues. The court has the option of awarding a plaintiff attorneys fees in a case where a municipality has failed to answer a FOIL request in the requisite time, or, as The Press alleges in this case, has unreasonably refused to provide public information.
Members of the Southampton Association, a Southampton Village-based civic group, have agreed to split the attorneys fees associated with the lawsuit with The Press, citing a need for more openness by district officials.
“Many residents in the village don’t feel there’s transparency in the district,” said Jay Diesing, president of the association. “I think there is a level of information that they clearly can give that would probably satisfy community awareness needs and still protect the individuals.
“I think they just dig their heels in … that’s not fair to the community,” he added.
The Press filed a FOIL request in April seeking a copy of the findings of an investigation into Dr. Farina, which was conducted by the Garden City-based firm Jaspan Schlesinger LLP. The district denied the request, citing “unwarranted invasion of personal privacy” and “other” as the reasons, although the line next to “other” to explain what that meant was left blank.
The Press then appealed the district’s denial, and the appeal was also rejected by the district. In the denial, Dr. Dyno wrote that such a disclosure “would constitute an unwarranted invasion of personal privacy,” the same reason given for the initial denial.
The only option left to attempt to compel the district to release the information was the filing of an Article 78 lawsuit, which generally seeks to overturn a decision made by an administrative agency rather than seeking monetary damages.
“We are disappointed to have to take this step, but it’s our only recourse through FOIL when the district will not provide information that we strongly believe should be made public,” Joseph P. Louchheim, owner and publisher of the Press News Group, said on Friday. “It’s a step we are taking on behalf of district residents—public access isn’t just about the newspaper having the information, but everyone in the district.
“Taxpayers have a right to know what’s being done with tax money, and that includes the performance of officials who are paid with it,” he added.
Dr. Farina resigned from his position in April, nearly two months after the Board of Education hired Jaspan Schlesinger LLP to investigate unspecified allegations made against the superintendent.
When the board accepted Dr. Farina’s resignation, former School Board President Heather McCallion read from a prepared statement that the move was a direct result of the investigation. Ms. McCallion would not go into details about what investigators found, citing that information to be “confidential and not subject to public disclosure.”
Both sides agreed to a confidentiality agreement as part of the settlement.
As part of his agreement with the school district, Dr. Farina received one year’s salary of $234,000 and was paid $1,170 for each unused vacation and sick day. He had eight unused vacation days and 47 unused sick days, totaling $64,350, meaning that he parted ways with the district with a total of $298,350. The district has refused to provide information about how the settlement was reached.
“The public paid for the investigation, paid Dr. Farina’s salary and paid nearly $300,000 in severance,” Mr. Louchheim said. “It seems ridiculous to suggest that the taxpayers are the only ones who should be kept in the dark about why he left.”
Robert Freeman, executive director for the State Committee on Open Government, said the school district was wrong in refusing to disclose the findings of the investigation to The Press. Unlike students, who are protected under the Family Educational Rights and Privacy Act, where employees are concerned, “the courts have pretty much said [they] have less privacy than anyone else,” he said at the time.
Mr. Freeman said it is the law that determines what is confidential and what is not and that any private confidentiality agreement between the district and an employee is irrelevant, although federal statutes like those protecting personal medical records would pertain.
State Assemblyman Fred W. Thiele Jr. is currently working on a bill that would make such confidentiality agreements null and void. Mr. Thiele said the bill would address confidentiality agreements in places where state or local tax dollars are expended.
“If taxpayer money is being expended for severance or a payoff, I think the public has the right to know,” he said on Friday.
Mr. Thiele said he will be working on the bill throughout the fall, and that he has been consulting with Mr. Freeman to make sure he gets the legislation drafted correctly.
This is the second lawsuit filed against the district in a month that has to do with the release of information. On August 3, Reclaim New York, a nonprofit organization that focuses on municipal accountability, filed a lawsuit against the Southampton School District, saying it had failed to provide an electronic copy of its spending records for the 2014 fiscal year.
While it was not alone in its failure to provide the records, Southampton, along with two townships, was singled out by the organization for legal action primarily because of the manner in which it refused to provide the information.
Municipal agencies like the Southampton School District typically do not count on being taken to court for FOIL violations because the costs affiliated with the cases can be expensive.
A case involving the Southampton Town Trustees and their failure to respond to a FOIL request from The South Shore Press in 2010 was finally decided this year in State Supreme Court, after the newspaper appealed an earlier decision that granted it the information it sought—but which did not award legal fees.
But on February 17 of this year, an appellate court unanimously overturned the lower court’s decision, saying the town must pay the plaintiffs’ legal fees associated with the case.
“The award of attorney’s fees is intended to create a clear deterrent to unreasonable delays and denials of access [and thereby] encourage every unit of government to make a good-faith effort to comply with the requirements of FOIL,” the decision reads.
It was a ruling that could become the new normal for FOIL request lawsuits. Governor Andrew Cuomo’s executive budget proposal this year included a proposal suggested by the Committee on Open Government to tighten FOIL restrictions. Currently, the court has the option of awarding a plaintiff attorney’s fees. The new wording would mandate the award of attorney fees in cases where the agency does not respond in the required amount of time or has unreasonably refused to provide public information.
The federal Freedom of Information Act was established in 1967, giving the public the right to request access to records from any federal agency, according to foia.gov. Under the law, government agencies are required to provide the information requested, unless it falls under one of nine exemptions, mostly involving personal privacy, national security and law enforcement. New York State’s Freedom of Information law is patterned after the federal measure. Any municipal or government agency can be subject to FOIL requests