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ONONDAGA COUNTY, COURTHOUSE SYRACUSE, NY 13202 (315) 671-1 103

FAX (315) 671-1 187

LORETTA R. KILPATRICK PRINCIPAL LAW CLERK

DONALD A. GREENWOOD JUSTICE

JENNIFER A. SELLARS SECRETARY

September 24,2010

Stephen Ciotoli, Esq.

O'Hara, O'Connell & Ciotoli

2707 East Genesee Street Fayetteville, New York 13066-1262

Frank W. Miller, Esq.

The Law Firm of Frank W. Miller 6575 Kirkville Road

East Syracuse, New York 13057

Re: Hamilton v. The Board of Education of the Jordan-Elbridge Central School District

Index No.: 2010-4298 RJI No.: 33-10-2944

Dear Counselors:

Enclosed please find a time stamped copy of Judge Greenwood's Decision and Order in the above captioned matter. Under separate cover the Release and Settlement Agreement is being returned to Mr. Miller.

Very truly yours,

/jas Enel.

Jennifer A. Sellars

Secretary to Hon. Donald A. Greenwood

At a Motion Term of the Supreme Court of the State of New York, held in and for the County of Onondaga on September 14,2010.

PRESENT: HON. DONALD A. GREENWOOD Supreme Court Justice

STATE OF NEW YORK

SUPREME COURT COUNTY OF ONONDAGA

WILLIAM E. HAMILTON,

;:::::

Petitioner,

DECISION AND ORDER ON MOTION

v.

RJI No.: 33-10-2944 Index No.: 2010-4298

... ".i

C:.i

THE BOARD OF EDUCATION OF THE JORDANELBRIDGE CENTRAL SCHOOL DISTRICT,

Respondent.

Pursuant to Civil Practice Laws and Rules, Article 78

APPEARANCES:

STEPHEN CIOTOLI, ESQ., OF O'HARA, O'CONNELL & CIOTOLI For Petitioner

"'"

FRANK W. MILLER, ESQ, OF THE LAW FIRM OF FRANK W. MILLER

For Respondent

The petitioner brings this Article 78 proceeding alleging that the respondent denied a

Freedom ofInformation Law (FOIL) request seeking documentation relating to the modification,

amendment andlor termination of the employment agreement between the respondent and its

superintendent, Marilyn Dominick, dated May 16, 2007, as well as any document relating to the

termination of Dominick's employment with the district and any post-termination employment

benefits. The petitioner alleges that the respondent failed to acknowledge receipt of his FOIL

request and thereafter denied his appeal. In this Article 78 proceeding, petitioner seeks to compel

the respondents to provide the documentation and requests attorneys fees. There is no dispute

that there is only one document at issue: the agreement between respondent and Dominick

concerning her resignation and retirement. The Freedom of Information Law is based upon a

presumption of access and all records of an agency are available except to the extent that the

records or portions thereof fall within one or more grounds for denial, as set forth in Public

Officer's Law §87. See, Public Officer's Law §87(2). FOIL is to be liberally construed and its

exemptions narrowly interpreted so that the public is granted maximum access to the records of

government. See, Buffalo News, Inc. v. Buffalo Enterprise Development Corp., 84 NY2d 488

(1994). An agency is permitted to withhold records to the extent the disclosure would constitute

"an unwarranted invasion of personal privacy", as the respondent has alleged here. 1 See, Public

Officer's Law §87(2)(b). However, disclosure of the documentation is not construed to constitute

an unwarranted invasion of personal privacy when identifying details are deleted. See, Public

Officer's Law 89(2)(c)(i). Moreover, both case law and the Committee on Open Government

Advisory Opinions have held that a contract between an administrator and a school district must

be disclosed under the FOIL, and neither the characterization of the documents as personal

records nor their placement in personnel files render the documents confidential or deniable

under the law. See, Steinmetz v. Board of Education, Supreme Court Suffolk County, NYLJ

1030 AD; see also, COG FOIL-A 0-7687 (5/4/93); see also, COG FOIL-AO-JOJ80 (6/25/97).

Due to respondent's articulated justification for withholding the document, the

respondent was ordered to submit a copy of the agreement to this Court for an in camera

1 The respondent claims that the agreement contains personal information concerning Dominick and "may potentially include her home address, date of birth, social security number, bank or retirement account numbers ... ". Respondent's Memorandum of Law in Opposition to Petition, at 5.

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inspection, and both parties consented. See, Fink v. Lefkowitz, 47 NY2d 567 (1979). Based on this Court's review, it is clear that none of the personal information alleged is contained in the agreement as respondent claimed. Nor does the agreement contain a confidentiality provision as alleged by the respondent. In any event, this Court would not be not bound by a confidentiality agreement and must make its own determination regarding disclosure. See, Matter of Washington Post Co. v. New York State Insurance Department, 61 NY2d 557 (1984). The respondent's argument that the petitioner knows the contents of the document based on his position with the school district is likewise unpersuasive. FOIL does not require a party requesting the information to show any particular need or purpose for records which are demanded; a petitioner's motive in seeking the records becomes relevant only if the petitioner's intended use of the material would run afoul of the FOIL exemptions as set forth in the statute. See, NY State Rifle & Pistol Ass 'n v. Kelly, 55 AD2d 222 (1 st Dept. 2008); see also, Public Officer's Law §87(2)(b). The respondent has not alleged such an intended use. Moreover, it was the respondent's duty to comply with the mandates of FOIL and it failed in that duty by allowing Dominick, who had a conflict of interest, to review the denial of petitioner's request when the document sought concerned her employment. As such, the docuinent is discoverable and there is no personal information to be redacted therefrom.

A party is entitled to such fees in a FOIL proceeding if the party establishes that: 1) it has substantially prevailed; 2) the record sought was of clearly significant interest to the general public; and 3) the agency lacked a reasonable basis in law for withholding the record. See, Beechwood Restorative Care Center v. Signor, 11 AD3d 987 (2004). If the party meets those requirements, the award of attorneys fees is discretionary with the court and a court's

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determination should not be disturbed unless an abuse of discretion is shown. See, Beechwood, supra; see also, Matter of Grace v. Chenango County, 256 AD2d 890 (3rd Dept. 1998); see also, URA C Corp. v. Public Service Commission of State of NY, 223 AD2d 906 (3rd Dept. 1996). The petitioner has satisfied all three prongs of the Beechwood test. Contrary to the assertions of the respondent, there is no confidentiality agreement upon which it could have reasonably relied, nor is there any confidential information to be redacted. The petitioner has also shown that the document is of significant interest to the general public. The agreement is between elected board members and a public employee and concerns the use of public funds, which is subject to annual review through the public vote on the school budget. The affidavit of Mary Dominick is unpersuasive in demonstrating a reasonable basis for withholding the records based upon its determination that if disclosed it would constitute an unwarranted invasion of personal privacy. See, Public Officer's Law §89(2); see also, Beechwood, supra,' see also, Matter of Powhida v. City of Albany, 147 AD2d 236 (3rd Dept. 1989). Mary Dominick's desire to keep the reason for her retirement and value of her severance package secret is not a sufficient basis under the Freedom of Information Law to deny the subject FOIL request. As such, the petitioner is entitled to reasonably attorney's fees in the amount of $2,500.

NOW, therefore, for the foregoing reasons, it is

ORDERED, that the relief sought in the petition is granted and respondent is ordered to provide the petitioner with an unredacted copy of the subject agreement forthwith, and it is further

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ORDERED, that the petitioner's application for attorney's fees is granted in the amount

of$2,500.

Dated: September 23, 2010 Syracuse, New York

Supreme Court Justice

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