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Legal Insurrection obtains TRO preserving records of anti-Israel 3rd Grade event

Legal Insurrection obtains TRO preserving records of anti-Israel 3rd Grade event

Ithaca Teachers union tells members not to turn over records on personal electronic devices and email. (See Update – Has the story changed?)

If you’ve wondered why I’ve been relatively absent from the website the past few days, it’s because I had to deal with a completely unexpected problem regarding 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).

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. [See Update, as to whether there has been a change of position on this.]

So I went to court and obtained a Temporary Restraining Order preserving records pending a court determination on the merits.

Details and full copy of Court Order below.

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.

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.

[Ithaca 3rd Grade appearance of Bassem Tamimi]

[Ithaca 3rd Grade appearance of Bassem Tamimi]

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

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.”

Teachers Union Inserts Itself Into FOIL Process

On December 1, 2015, ICSD dropped a bombshell — The Ithaca Teachers Association 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 (emphasis added):

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 any such records exist, they will not be furnished by ITA members.

I asked ICSD and ITA to agree to preserve records pending my challenge to this maneuver in court.  ITA never responded to my request. (added) I also requested that ITA inform me “immediately” if the account by ICSD was not accurate, but I never heard back from ITA.

ICSD did respond, and essentially agreed with me as to preservation of records, but took the position that it doesn’t possess the records, the employees (presumably teachers and staff) do on their personal devices. ICSD at least did request that ITA preserve records:

“This is to follow up on my prior request for school employees to turn over, for my
inspection, all records in their possession that fit within the parameters of Mr.
Jacobson’s FOIL request, a copy of which was previously provided.

In response, you informed me that ITA members would not be providing records
in their possession, which are deemed by the ITA to be personal in nature. I informed
Mr. Jacobson of this assertion, and now, as you are aware, litigation has been
threatened.

Accordingly, I again repeat my request for all such records to be provided for my
inspection. Moreover, inasmuch as Mr. Jacobson’s FOIL request is still pending, and
litigation has been threatened, it is imperative that the ITA and its members preserve all
records that fit within the parameters of Mr. Jacobson’s FOIL request.”

Court Issues TRO

Not having heard anything from ITA , 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 laid out my argument, which read in part:

22. NY FOIL makes no distinction between records regarding agency business contained on agency computers versus records regarding agency business contained on personal electronic devices or personal email accounts of agency employees. NY Public Officers Law §86(4). To create such a distinction would render FOIL meaningless, as it would permit agencies and their employees effectively to nullify the statute by conducting business on personal electronic devices and through personal email accounts.

23. Pursuant to CPLR 3102(c), Petitioner requests an order and injunctive relief to preserve records pending determination by the Court as to (i) whether the records ITA has instructed its members not to turn over to ICSD must be provided to ICSD for review as part of ICSD’s response to Petitioner’s FOIL Request; and (ii) ultimately, once the administrative appeal process is complete, whether such records need to be produced by ICSD to Petitioner pursuant to the FOIL Request. If the records are not preserved, however, any court ruling in Petitioner’s favor on the merits as to either issue may be rendered moot, depriving Petitioner of his rights under FOIL.

24. The need for this emergency relief is caused by ITA’s instruction to its members not to provide to ICSD certain records responsive to Petitioner’s FOIL Request, and ITA’s failure to respond to requests to cooperate in preservation of records pending a court ruling.

25. While Petitioner does not believe ITA has any legal right to interfere with ICSD’s compliance with a FOIL Request, the Court need not determine that issue yet, as the present application for a temporary injunction seeks only preservation of records pending a court determination on the merits.

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:

  1. 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”);
  2. 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.

The respondents have until December 30 to file their response, and I will have until January 6, 2016 to file my response. The court hearing will be on January 8.

I filed pro se, but am hopeful to have counsel on board by the time I have to file my Reply.

Update 12-10-2015 1 p.m. — A few minutes ago I received this curious communication from ICSD regarding what it previously was told by ITA and what it now is told by ITA. It reads in pertinent part:

… please find a copy of an e-mail to me from [ITA’s President] dated December 4, 2015 {i.e., 2 days after your records demand to him), wherein he states the following:

The teachers represented by IT A submitted all school related documents pertaining to this matter back in October. These included emails that they may have accessed on personal devices.

Please note, however, that [ITA’s President] subsequently supplemented this written response by informing me, verbally, in-person, that there is one record, and only one record of which the ITA is aware that is responsive to FOIL request No. 1, which was withheld by an ICSD employee who is an ITA member. Specifically, according to [ITA’s President], the ITA is aware of an e-mail by an ICSD teacher to a family member, wherein the teacher purportedly complained about the “stress” that the speakers’ incident at BJM was causing her personally. To date, however, this record has not been provided to me for review.

In sum, as indicated previously, [ITA’s President] initially informed me that ITA members would not be producing any records that they considered to be “personal” records, albeit without providing me any information about how many such records might exist and/or where they are being maintained. He is now saying, for the first time, that there is only one such record.

The sub-headline has been changed to reflect this apparent change in position.

————————-

Jacobson v. ICSD and ITA – Order to Show Cause and Temporary Restraining Order Issued 12-9-2015

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Comments

DavidJackSmith | December 9, 2015 at 8:23 pm

Has the whole US education system, from 1st grade upwards, been infiltrated and perverted by unhinged Israel haters who’ll DO ANYTHING to malign Jews?

    Yes. The a large fraction of American public schools are nothing but forward operating bases for those who would destroy America.

    Nothing new about THAT, except that folks like Professor Jacobson are now bringing the fight to THEM.

    –Andrew, @LawSelfDefense

      DavidJackSmith in reply to Andrew Branca. | December 9, 2015 at 8:50 pm

      That explains first year college students TODAY. 13 years after indoctrination begins.

      Of course, doesn’t explain why Republicans have done nothing about it. President Bush being in power when today’s 18/19 year old college freshmen began their public education.

        legacyrepublican in reply to DavidJackSmith. | December 9, 2015 at 10:50 pm

        Are you kidding? What do you think “No Child Left Behind” was all about?

        My son is having to do a science lab right now on “Global Warming.” He has to spout the party line. No evidence to the contrary is allowed.

        Likewise, when he had to do a social studies class last year on religion, no contrary evidence was allowed.

        We’ve pushed out “critical thinking” for “critical mass.”

      Andrew Branca for Secretary of Defense!

      “Nothing new about THAT, except that folks like Professor Jacobson are now bringing the fight to THEM.”

      And increasing numbers of us are educating our children at home, both preventing Leviathan from polluting their minds and raising up strong, well-educated soldiers to continue the fight. Unfortunately, the other side has demographics and relentless immigration on their side. It should prove to be a wild ride.

A fine win, Prof. Good luck with the follow-on!

BTW, verified petitions are hardly ever met with a pleading “of equal dignity” in my experience.

Which is COOL…!!!

Teacher unions should be illegal.
Unions collect dues from their members and then openly campaign not just FOR the Democratic party, but AGAINST Republicans and the Tea Party.
A teacher with conservative values or beliefs is faced with a tough choice: join and support the Democrats, or just be on their own without representation, while Liberal colleagues get the protection of the union.
That should be illegal.

legalizehazing | December 9, 2015 at 9:32 pm

Citizen of the Year Award. We should all take note of this shining example of citizenship.

It’s hard when it comes home. I had never known my step mother, an environmental literature professor, to have an opinion on Israel. As the quintessential marxist tool I should have known what to expect. I was with her after the San Bern shooting. She was confident the Jewish girl killed was a hardcore Zionist that provoked the violence… What can you do?

publish it.. litigate it.. go to leverage the local union.. Well done.

I posted this on 12/1 in reference to Dr. J.’s coverage of Marsha Levine an activist in BDS in our part of NY. It’s worth repeating with an addendum:

On that last note, it should be another red flag for Dr. Brown and the school board at Ithaca City School District for having a core group of BDS supporters working and advocating within the classrooms. They have gone off record on this and are treating the BDS presentation as a “one time incident”. The fact that Ms. Levine is actively involved with the colleges at Columbia and Syracuse puts Ithaca and Cornell as third position in the triangle of education and the inroad to elementary classroom indoctrination she subscribes to. Due to her affiliation at Syracuse U., Syracuse City S.D. being a much larger system than is Ithaca, would be a bastion for BDS to be “infiltrated”. Levine’s response speaks volumes as to their goals and the incident detailed here at L.I. attests to its mission as happened at Beverly J. Martin. What other elementary schools has this been happening that it has gone unchallenged?

Ad.: Where are the “other Dr. Jacobson’s” who will step up and take on and challenge those who protect and support a system where they believe it is their right and entitlement by profession to indoctrinate someone else’s child?

Professor: Clearly you are erudite, clever, and sophisticated, some would reasonably say brilliant. But obviously you haven’t a lot of experience with the scum who parade as public school teachers. Not meaning no disrespect, governor, but just exactly who the hell do you think you are asking public school teachers to put an ounce of sweat into doing anything for you? While the records might have been made on personal devices, which isn’t admitting that any were made on personal devices, don’t you know that personal to public school teachers means it is theirs and you can’t have it? Since such hypothetical records, are you sure they exist, might have been made while the teachers were supposed to be working and such records would then be public property, why do you think asking for them will get them? I wouldn’t be the least bit surprised if the scurvy lot of them (the teachers) made copies of everything onto devices not taken to school, and deleted what was on the devices at school. So the video would be on their lap top at home, but not on their phones. Arrogant, ignorant, rats, who are further evidence to support my assertion that we need to decriminalize school truancy so good people do not have to send their innocent children into such caldrons of evil.

    Milwaukee in reply to Milwaukee. | December 10, 2015 at 1:07 am

    A radio talk show host this morning suggested that the reason Denver didn’t have the organized crime and city official corruption that Chicago and New York have could be attributed to unions. Strong unions become vehicles for corruption, without those strong unions corruption is a little more difficult to take root and grow. I’ll be the Ithaca teachers have a strong union.

    Another Voice in reply to Milwaukee. | December 11, 2015 at 1:55 pm

    Hillary believed she was “safe” when she said emails were deleted. Yet it was a result of a few identified emails which were received which opened the dam to produce the results of those sent. The Hillary analogy goes to the “case of who knew what when”. There is where the courts can prevail as we are seeing now. Also note that the last major FOIL Dr. J. requested was litigated by Judicial Watch in the courts and resulted in producing requested documentation of correspondence.

Thank you Professor. It is this kind of thing that needs to be made public.

While I work in the public school system in my state I work at a special education school, so there is not quite the level of problems there. However, if I ever did have children, there is no way I would allow them to go to public school.

Congratulations. My experience with FOI is that governments tend to ignore inconvenient requests. They never face any negative consequences. Unless the requester has the resources and/or skill to go to court, they go on as usual. The very worst that can happen is that they are ordered to comply. Often by that time, if the information was key to stopping a project or legislation, it comes too late.

This goes on at all levels from federal to local governments. It will continue until FOI laws include some personal penalties for officials who defy them.

Worried_in_USA | December 10, 2015 at 9:07 am

Bless you, professor. I wonder if there is a very hot corner of Hades for those who lead little children to hate.

Congratulations. You’ve gotten a court to issue a piece of paper. Do you really believe that this will stop the union from destroying evidence, or that there will be consequences when they do? I don’t.

Cynical? Me? Whatever gives you that impression?

Thank you, Mr Jacobson, for this post. It has enough detail to be useful to others of us who might have to do this kind of thing pro se some day— and this is exactly the kind of thing where one might have to do it pro se for lack of time to get a lawyer hired and informed of what’s going on.

Thank you Prof for being willing to fight the good fight AND for knowing how.
Do you think mark Levine knows about this? He needs to so even more people all over our country see this.

Like Hillary Clinton, like teachers’ union.

Whole lotta yoga emails goin’ on.

I agree with your outrage re the propaganda but the tro should have been denied. Reason: Fourth Amend & Fifth amend. The electrons do not belong to the school district.

    TempeJeff in reply to Curle. | December 12, 2015 at 6:25 pm

    True, but the electrons don’t belong to the teachers either; they were rented by the teachers from the local PUBLIC utility which is, regulated by the State of New York. Heh heh…

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