Ithaca (NY) School District has fought for almost a year to prevent release of video and other documents
On Friday morning, September 18, 2015, the third grade classes at the Beverly J. Martin School in Ithaca, NY, heard a presentation on “human rights” by Palestinian activist Bassem Tamimi and local anti-Israel activists, including Ariel Gold of the local chapter of the anti-Israel Jewish Voice for Peace (she also is a full time employee of Code Pink), and Mary Grady Flores. The event was arranged through third grade teacher Brooke Burnett, a friend of Gold and Flores.
On Sunday night, September 20, Legal Insurrection broke the story, Anti-Israel activism hits elementary school in Ithaca, NY. Because of Tamimi’s notoriety for exploiting children in videotaped confrontations with Israeli soldiers, Tamimi’s mere appearance in a third grade class raised suspicions about the event.
Docs Confirmed Third Grade Event Was Anti-Israel Propaganda
After our September 20 report, a firestorm of controversy erupted, with the Superintendent of the Ithaca City School District (ICSD), Dr. Luvelle Brown, conducting an investigation, after which he issued a statement that the event was “politically skewed, inflammatory, and not endorsed by the Ithaca City School District.”
The controversy received widespread news coverage, particularly over the activists’ request to the students to become “freedom fighters for Palestine”:
I filed a NY Freedom of Information Law (FOIL) request seeking documents about the event. While numerous documents, including a video of the event, were withheld by ICSD, what was produced was enough to declare without doubt that the event was an anti-Israel presentation in which both the activists and the teacher leading the discussion skewed the conversation against Israel to the extent that one or more students were incited to express hatred of Israel.
I described my findings and the evidence obtained in a post on November 8, 2015, New docs reveal Third Grade Anti-Israel event much worse than thought.
Court Battle No. 1 – Prevent Destruction of Records
Then started what has become multiple court battles. The first battle took place when ICSD revealed that the Ithaca Teachers Association (ITA) had advised members that they did not need to turn over “personal” documents to the school district even if the documents were subject to my FOIL request. I sought and obtained a court injunction against such potential document destruction and interference in the FOIL process, Legal Insurrection obtains TRO preserving records of anti-Israel 3rd Grade event.
That temporary order later was confirmed by the court, Legal Insurrection notches another victory in Ithaca 3rd Grade anti-Israel case:
1. All records responsive to petitioner’s FOIL request shall be preserved on personal devices of ICSD employees, and on devices under the control of ITA or its members, until such time as copies have been delivered to ICSD.
2. ICSD employees with information responsive to petitioner’s request shall reasonably and promptly cooperate with ICSD in identifying such records and providing copies to ICSD in
accordance with this decision, order and judgment.
3. ITA and its employees and officers shall promptly provide ICSD with copies of any records in their possession that are responsive to petitioner’s FOIL request.
4. ICSD shall establish a procedure for conferring personally with each employee who was involved in scheduling or overseeing the Tamimi event to determine whether their respective
personal devices contain any records that may be responsive to petitioner’s request. Employees may have counsel and/or an ITA representative present during that process. Upon completion of that process, and within 30 days from the date of this decision, order and judgment, ICSD shall provide petitioner with a further FOIL response: (a) describing the process used to determine whether any such records exist; (b) identifying any employees who were interviewed; (c) identifying additional records, if any, that may be located; and (d) providing petitioner with copies of any identified records, or, if all or part of any record is to be withheld, a statement of the reasons therefor.
5. Except as specifically provided herein, the petition is denied.
6. ITA’s cross-motion seeking vacatur of the TRO ab initio is denied.
7. In light of the provisions made herein for preservation of information that may be responsive to petitioner’s FOIL request, the TRO is hereby vacated.
Court Battle No. 2 – Get the Video and Remove Redactions
But it wasn’t over yet. The injunction action was to preserve records, but I still needed to convince the court that I was entitled to have the records turned over to me, and to get the voluminous redactions removed.
So in April 2016, I filed a second action under NY Civil Practice Law and Rules Article 78, seeking an order that the video and documents be turned over to me, with the heavy redactions removed.
The case was extensively briefed with affidavits and documents. ICSD was represented by the largest law firm in Syracuse. I was represented by me.
The case was argued on July 15.
I found out earlier today that I won.
Victory – Court Rules that Video Must Be Released and Documents Submitted to Court for Review
A key issue was a video of the event taken by outside activists Ariel Gold and Mary Grady Flores. A partial transcript of part of the video was produced by ICSD, but it had obvious gaps and most important, not a single piece of video or audio was released. Not even of the presentations by Tamimi, the outside activists, or the teacher Brooke Burnett (who is friends with Gold and Flores).
ICSD argued that the video and audio were protected “education records” under the federal Family Educational Rights and Privacy Act (FERPA), even the parts not involving student images or voices. I extensively briefed why the entire video was not an “education record” under the statute.
The Court agreed with me, and ordered the video released to me with limited redactions to protect student identification (I voluntarily offered to accept that long before the court ruling):
ICSD has not alleged that the video recordings are related in any way to the educational performance of the students depicted, nor that copies of the video recordings are maintained with, referenced in, or indexed to, any individual student files maintained by the central registrar or custodian of student records…. Accordingly, the video recordings are not educational records for purposes of FERPA.
Petitioner has consented to redaction of the video recordings to protect the identity of the students involved (see Reply Memorandum of Law dated July 8, 2016, p. 10, 17; see also pp. 13-17 [suggested scope and methods of redaction]). The court also determines that redaction is necessary and appropriate in this case, regardless of the applicability of FERPA, to protect the identities of the students involved in the event. Thus, all video recordings produced shall be redacted to protect the identity of the students depicted by “blurring” their faces and eliminating any reference to names or other factual information that would directly identify a student, and student voices may be slightly muffled or obscured, provided that the content of their speech remains clearly audible….
It bears emphasizing that respondent created the possibility that video recordings depicting students would be published, not only by permitting the event to occur, but also by allowing individuals whom it did not employ, i.e., Gold and Flores, to be present and record the event. The risk that unredacted video recordings depicting individual students would be published existed from the moment that the recordings were made by individuals not under ICSD’s control and, in fact, portions of the video recordings have apparently been published and made available for public viewing. Thus, disclosure of video recordings redacted as directed herein causes no further harm to any of the innocent students involved.
[Note: The court also ruled that I would have to bear the cost of the video redaction. So depending on how much ICSD tells me it will cost, I may run a mini-fundraiser. ICSD’s budget is huge, mine is small.]
There also was an interesting twist as to the video. ICSD in its papers never accounted for all clips of video taken. There also was an indication it had video it was unable to open. From the following wording in the court decision, I’m surmising that the court has the same concern I have, that some of the video may have gone missing. So the court ordered (even though I had not asked for it) ICSD to provide an affidavit:
The FOIL response contains a copy of an email from Ariel Gold to Brook Burnett, the teacher involved, and to Susan Eschbach, Principal at BJM, dated September 18, 2015, which attaches two videos that Gold took during the presentation using her phone (attached in electronic format as “.MOV” files). The FOIL response further shows that Eschbach was unable to open the attachments and that ICSD staff subsequently sought additional copies of the video recordings from Gold. However, ICSD does not deny that it has the video files that Gold originally provided, does not state whether she provided further copies, nor indicate whether it has been successful in viewing the Gold video recordings. Accordingly, ICSD shall submit an affidavit or affidavits from an employee or employees with personal knowledge stating: (1) when it received copies of the .MOV video files from Gold; (2) whether it continues to possess such files and, if not, when and how they were destroyed or deleted; (3) if copies were provided to any person or party by ICSD, the identity of any such recipient, the date or dates on which the files were sent, and the mechanism of the transfer; (4) whether attempts were made to open and view the files after Eschbach’s unsuccessful initial attempt to view them; and (5) whether such further attempts, if any, were successful. If ICSD was successful in opening and viewing the files, it shall provide petitioner with copies of the video recordings redacted in the same manner as directed above. If it has video files from Gold that it has been unable to open, it will provide copies to the court for further review and determination.
Another big issue was that ICSD redacted the names of most people who communicated with ICSD regarding the Tamimi event and controversy, claiming disclosure of the names would constitute an unwarranted invasion of personal privacy. I objected, since communications were not made with an expectation of privacy and were more in the nature of public commentary than a confidential complaint process.
The court agreed with me, ruling in part:
ICSD has failed to meet its burden with respect to the assertion that disclosure of the names of the authors of the written comments, or other information identifying the authors,constitutes an unwarranted invasion of personal privacy. In asserting that the identities of theauthors of the comments were exempt from disclosure, ICSD relied on the definition of anunwarranted invasion of personal property as “disclosure of information of a personal naturereported in confidence to an agency and not relevant to the work of the agency” (Public OfficersLaw § 89  [b] [v]). Moreover, it bears noting that ICSD did not uniformly apply the exemption that it relied upon, inasmuch as it disclosed the names of the authors of somecomments but not others.
Although the identity of a person who complains about the performance of a public employee may be exempt from disclosure, the identities of those who make comments that would be expected to be made at a public hearing are not exempt from disclosure (see Committee onOpen Government OML-AO-05223, FOIL-AO-18743, dated December 22, 2011). The majorityof the comments disclosed are not in the nature of complaints regarding the performance of ICSDemployees; rather, they are comments on a matter of public interest for which ICSD has failed to demonstrate that the authors had any expectation of privacy.
Similarly, even assuming that theTamimi event is, or was, a controversial issue, ICSD failed to make any allegations establishing the level of the disagreement and “the degree to which an ordinary person of reasonable sensibilities would react to disclosure of the comments coupled with the identity of the personmaking the comments” (id.). Thus, the the names, and other identifying information about, the authors of the various comments is not exempt from disclosure under FOIL [with one exception the court described later in the decision].
The final substantive issue was that ICSD had heavily redacted numerous documents and withheld completely many others under what is called the “intra-agency” or “deliberative process” exemption. That exemption basically allows agency decision makers to express opinions to each other without fear of later disclosure. That exemption, however, does not cover facts and other non-opinion portions of records. Following what is pretty standard procedure, the court ordered the documents submitted to the court for in chambers (“in camera”) review.
The only issue I lost was on attorney’s fees. Had I hired an attorney and paid attorney’s fees, I might have been entitled. But since I did it myself pro se, the court ruled I was not entitled:
The petition also seeks an award of attorney’s fees and litigation expenses. Petitioner is an attorney admitted to practice in New York who is self-represented in this proceeding. Accordingly, he is not entitled to an award of attorney’s fees and costs, and his request therefor is denied…. [case citations omitted]
Conclusion – Will ICSD Keep Wasting Taxpayer Money to Keep Fighting?
In all, this was a sweeping victory for the public interest after almost a full year of litigation against a school district with a bottomless budget using the largest law firm in Syracuse.
I can only imagine how much taxpayer money was spent trying to conceal the video and other information. What a waste. I offered multiple times to work with the district to resolve issues related to protecting student privacy – but received no response. Stone cold silence.
The truth will come out, it’s only a question of whether ICSD will keep wasting taxpayer money to keep fighting.
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