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In re Petition of Jacobson

Supreme Court, Suffolk County

March 2, 2016

In the Matter of the Petition of William A. Jacobson, Petitioner, For an Order and Injunctive Relief Pursuant to CPLR 3102(c) Preserving Records and Evidence
v.
Ithaca City School District, ITHACA TEACHERS ASSOCIATION, And John and Jane Does, being employees of ICSD whose identities are not yet known, Respondents.

          WILLIAM A. JACOBSON, ESQ. Petitioner Pro Se.

          BOND, SCHOENECK & KING, PLLC By: Jonathan B. Fellows, Esq. Attorneys for Respondents Ithaca City School District One Lincoln Center.

          RICHARD E. CASAGRANDE By: Laura H. Delaney, Esq., Associate Counsel New York State United Teachers Office of General Counsel.

          Phillip R. Rumsey, J.

         Petitioner commenced this proceeding, pursuant to CPLR 3102, seeking an order and judgment granting relief that he alleges is necessary to preserve information which he requested that respondent Ithaca City School District (ICSD) provide pursuant to Public Officers Law article 6 (Freedom of Information Law; herein FOIL), but which may not have been provided. On September 29, 2015, petitioner requested, pursuant to FOIL, that ICSD provide all records regarding an appearance that Bassem Tamimi made before third graders at the Beverly J. Martin Elementary School (BJM) on September 18, 2015. On November 3, 2015, ICSD provided a response that, in relevant part, stated that:

"As of today's date, there is one additional matter pertaining to your FOIL request that remains unresolved. 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. Therefore, we have no way of knowing whether our employees possess any additional responsive records, and no way of knowing, without reviewing those records, whether such additional records (if any) contain information that can lawfully be and/or needs to be redacted or withheld under FOIL. However, it is at least possible that additional responsive records may be uncovered. We will get back to you about such additional responsive records (if indeed there are any) on or before December 1, 2015."

         Letter from Amanda Verba, ICSD Records Access Officer, to petitioner dated November 3, 2015, pp. 2-3 (a copy of the letter is attached as Exhibit B to the petition and as Exhibit B to the Affidavit of Amanda Verba, sworn to December 31, 2015 [Verba Affidavit]).

         ICSD provided the following additional response on the promised deadline of December 1, 2015:

"This is to follow up regarding the unresolved matter referenced in our November 3, 2015 response letter to your FOIL request dated September 29, 2015.
"As previously indicated, we asked school employees to provide, for the District's review, 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.
"In response, the Ithaca Teachers Association (ITA) President informed us that the ITA considers any records that were sent or received by ITA members via their personal e-mail accounts and/or personal devices, to be personal in nature. Therefore, the ITA President has informed us, that to the extent that any such records exist, they will not be furnished by ITA members.
"Consequently, we have not identified any additional records that may be responsive to your FOIL request. To be clear, we are not denying you any records, except as specified in our November 3, 2015 response letter. The District is not the custodian of any additional records.
"This will complete our response to your FOIL request."

         Letter from Amanda Verba, ICSD Records Access Officer, to petitioner dated December 1, 2015 (a copy of the letter is attached as Exhibit C to the ...


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