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.
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.
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.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.”
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 myinspection, 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 recordsin their possession, which are deemed by the ITA to be personal in nature. I informedMr. Jacobson of this assertion, and now, as you are aware, litigation has beenthreatened.Accordingly, I again repeat my request for all such records to be provided for myinspection. Moreover, inasmuch as Mr. Jacobson’s FOIL request is still pending, andlitigation has been threatened, it is imperative that the ITA and its members preserve allrecords that fit within the parameters of Mr. Jacobson’s FOIL request.”
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:
- 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”);
- 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.
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Jacobson v. ICSD and ITA – Order to Show Cause and Temporary Restraining Order Issued 12-9-2015
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