FOIL Request for Records Related to Communications with American Academy of Pediatrics and Council on School Health (South Colonie Central School District)

To Whom It May Concern:

Pursuant to the New York Freedom of Information Law, I hereby request the following records:

I am seeking all records related to the American Academy of Pediatrics (AAP) and the Council on School Health (COSH), including any communications or correspondence between the school district and these organizations, or any other party that may have provided information to the district from these organizations.

To help identify responsive records, you can limit your time period to 1/1/2017 until the date of final response; also I request that you search for the following terms, which are focused on the American Academy of Pediatrics and its affiliated organizations:

"American Academy of Pediatrics"
"AAP"
"Council on School Health"
"COSH"
"pediatric"
"child health"
"school health"

Please include records of any type, including but not limited to emails, letters, memoranda, reports, meeting minutes, presentations, and any other records of communication or correspondence between the American Academy of Pediatrics, the Council on School Health, and the school district or any other party that may have provided information to the district from these organizations.

If no records are responsive to this request, please provide a certification of that fact pursuant to Public Officers Law §89(3), and inform me of the district's obligations under LGS-01 to retain records until any appeal has been resolved.

If any records are withheld, please provide an explanation of the legal basis for the withholding.

If my request is denied in whole or in part, please provide a written explanation of the reasons for the denial.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires.

Sincerely,

Jackson Parker

I am writing to appeal the response to my FOIL request for records related to the American Academy of Pediatrics (AAP) and the Council on School Health (COSH). Your response stated that no such documents exist in your records, which I find to be inaccurate and unsupported by the evidence. [1]

As I mentioned in my original request, there are multiple instances in which the South Colonie Central School District has publicly referenced the AAP and its affiliated organizations, such as in communications related to COVID-19 mitigation efforts. In addition, I have reason to believe that the school district may have received communications or correspondence from these organizations, or any other party that may have provided information to the district from these organizations.

Therefore, I request that you conduct a diligent search of your records for any responsive documents related to the AAP, COSH, and the other search terms I specified in my request. If necessary, please consult with relevant staff or officials who may have knowledge of such records. As stated in my original request, I am requesting all records of any type, including but not limited to emails, letters, memoranda, reports, meeting minutes, presentations, and any other records of communication or correspondence.

If no records are responsive to this request, please provide a certification of that fact pursuant to Public Officers Law §89(3). However, I urge you to conduct a thorough and complete search to ensure that all responsive records are identified.

If any records are withheld, please provide an explanation of the legal basis for the withholding.

Thank you for your attention to this matter. I look forward to receiving your response within the time frame required by law.

[1] https://www.southcolonieschools.org/colonie-fall-athletics-update/

Subject: FOIL Request Appeal - Revised and Narrowed Request

Dear Mr. Robilotti,

Thank you for your response to my FOIL request appeal dated April 28, 2023. I appreciate the effort in conducting a search for responsive documents related to my request. I understand that the current search yielded 146,371 emails that match the search terms I provided. To assist in reducing the volume of documents and the associated time required for review, I would like to revise and narrow my request as follows:

Please limit the search to correspondence involving the following individuals or roles within the South Colonie Central School District:
a. Board members
b. Superintendent
c. Assistant Superintendents
d. District Clerk
e. All administrative staff (excluding teachers)

Exclude mass emails and newsletters that are sent to the general public or large groups of recipients. Instead, focus on communications that reference the following organizations, communications directly between the school district and these organizations, or communications where information from these organizations is shared, either through messages or attachments:
a. "American Academy of Pediatrics"
b. "AAP"
c. "Council on School Health"
d. "COSH"

Additionally, it is concerning that the initial response to my FOIL request indicated that no responsive documents existed in your records. I would appreciate an explanation as to why this discrepancy occurred, although I understand this may not be covered under FOIL.

I hope these revisions will significantly reduce the volume of documents to be reviewed and make the request more manageable. If there are still a considerable number of documents that need review, please provide an estimated fee for processing the narrowed request, and I will determine how to proceed.

Thank you for your cooperation and attention to this matter. I look forward to receiving the revised search results and any relevant explanation regarding the initial response to my request.

Dear Mr. Robilotti,

I am writing to further address my FOIL request for records related to communications between the South Colonie Central School District and the American Academy of Pediatrics (AAP) or the Council on School Health (COSH). I understand from your last response that the District is in possession of over 2,000 responsive records.

Given that all of the records in question are electronic, I would like to refer to the New York State Committee on Open Government Advisory Opinion FOIL-AO-17734, which discusses the fee provisions of the Freedom of Information Law in relation to requests for records. According to the advisory opinion, when records can be transmitted via email, there would be no "actual cost" of reproduction.

Since the documents are already in electronic form and have been found with reasonably little effort, I would like to clarify my understanding that no associated fees should be applied in this case. This would be in line with the guidance provided by the Committee on Open Government, which states that it is in the public interest to provide access to computerized records at low cost. Moreover, the Court of Appeals has held that the fulfillment of a government obligation to provide public access to information is not a waste of public funds (Doolan v. BOCES, 48 NY 2d 341, 347 [1979]).

In light of the electronic nature of the records and the public interest in ensuring access to them without incurring costs, I respectfully request that the District provide the responsive records without any fees. I appreciate your cooperation in this matter and look forward to receiving the records in a timely manner.

Dear Mr. Robilotti,

Thank you for the clarification on the fees associated with reviewing and redacting the documents. I understand that these fees are related to the effort involved in processing the request and not the transmission or copying of the records.

In an effort to minimize the review and redaction workload, and consequently the fees, I would like to further refine my request as follows:

Please limit the search to the following roles within the South Colonie Central School District:
a. Superintendent
b. Assistant Superintendents
Focus on communications that:
a. Reference the following organizations, communications directly between the school district and these organizations, or communications where information from these organizations is shared, either through messages or attachments:
i. "American Academy of Pediatrics"
ii. "AAP"
iii. "Council on School Health"
iv. "COSH"
b. Discuss or mention COVID-19 mitigation efforts or related policies within the school district.
I hope that these additional refinements will further reduce the number of documents to be reviewed and the associated fees. Please provide an updated estimate of the number of responsive records and the revised fee for processing this more focused request. I will then determine how to proceed.

Thank you for your continued cooperation and attention to this matter.

I trust this correspondence finds you in good health and high spirits. Thank you ever so kindly for your response regarding the fees associated with the fulfillment of my FOIL request. As a follow-up to my previous message, I would like to bring to your attention a pertinent advisory opinion issued by the New York Department of State's Committee on Open Government, FOI-AO-19103, dated January 28, 2014.

In this advisory opinion, the Committee addressed the application of the Freedom of Information Law to records requested from the Office of the Attorney General. The opinion delineates that an agency, such as the South Colonie Central School District, is not permitted to charge for time spent reviewing records to determine which portions, if any, may be withheld. Furthermore, electronically removing material from email records is akin to blacking out sentences on a page prior to copying for release. The Freedom of Information Law has consistently required the agency to perform this redaction at no cost to the applicant.

Given the aforementioned advisory opinion and considering that the esteemed District is endowed with the necessary technology to effectuate electronic redactions in documents, I kindly emphasize that no fee should be imposed for the copying of files or the redaction of information, per the regulations provided in 21 CRR-NY 1401.8.

It has come to my attention that the overall District budget for the 2022-2023 year is a remarkable sum of $113,458,885, with approximately $10,000,000 allocated for administrative purposes. With such a munificent budget, I trust that the District has the means to fulfill my FOIL request without imposing undue fees.

In the event that the District encounters any difficulty in obtaining the requisite technology or personnel to execute the redactions, I am delighted to provide, a list of free software that can be employed for this purpose:

LibreOffice (https://www.libreoffice.org/)
PDF-XChange Editor (https://www.tracker-software.com/product/pdf-xchange-editor)
PDFescape (https://www.pdfescape.com/)

With the utmost respect, I humbly reiterate my request that the District waive the fees associated with the fulfillment of my FOIL request, save for the reasonable photocopying fees permitted under 21 CRR-NY 1401.8(b)(3) for redacted records, in compliance with the regulations provided in 21 CRR-NY 1401.8 and the advisory opinion FOI-AO-19103. Please note that these fees would only apply to records justifying redaction for which electronic redaction is not possible. That being said, sufficient information has been presented in this email, along with the said means of the District, which should be adequate for waiving fees on this request. I do hope this request is not too forward, and I extend my sincerest gratitude for your cooperation in this matter. I eagerly anticipate receiving the responsive records in a timely manner.

Dear Assistant Superintendent Robilotti,

Thank you for your prompt response and for taking the time to consult with your legal counsel regarding my FOIL request.

While I understand and respect the stance of the District, I wish to further engage on this issue in the spirit of transparency, and I believe further clarification is necessary.

The regulation 21 NYCRR § 1401.8 that your counsel has pointed out permits charging a fee under certain circumstances. However, considering the language of the regulation and the nature of my request, I am unable to fully understand the breakdown of the costs proposed by the District.

Specifically, paragraph (c)(1) of this regulation permits an agency to charge a fee equivalent to the hourly salary of the lowest paid employee who has the necessary skill to prepare a copy of the requested record, but only when more than two hours of the said employee's time are required to do so. Therefore, I respectfully request clarification on which tasks involved in the preparation of my FOIL request required more than two hours to fulfill.

Furthermore, paragraph (d) relates to retrieving or extracting a record or data maintained in a computer storage system. If this was part of the process in responding to my request, I kindly request further clarification on how much of the proposed fee is associated with this procedure.

Additionally, while it is acknowledged that the District has the discretion to impose a fee according to paragraph (g) of the said regulation, it is also stated in the same paragraph that an agency may waive a fee in whole or in part when making copies of records available. Considering the public interest of the information I am seeking and its importance for public transparency, I kindly reiterate my request for a waiver of these fees.

I am willing to pay the fee for the sake of transparency on this crucial topic; however, I believe it is important to uphold the principles of FOIL, and that any charges should align with the regulations set out in 21 NYCRR § 1401.8. Therefore, I request a detailed breakdown of the fee, including a justification for each component.

Once again, I extend my sincere gratitude for your assistance in this matter, and I am eagerly looking forward to your response.

Dear Assistant Superintendent Robilotti,

Thank you for providing a detailed breakdown of the proposed fee. I appreciate your transparency and the efforts you have made in ensuring a fair cost calculation.

I would like to clarify my understanding of the fee structure based on the regulation 21 NYCRR § 1401.8 and your explanations.

The first hour charged at $50.00 accounts for the time spent refining the original request to its current state. I understand this is a necessary step in the process of retrieving the specific information I have requested.

The following 2.5 hours at $75.00 are allocated to your review of the pages before they are released. I acknowledge your role as the FOIL officer and appreciate the seriousness with which you approach the task.

That said, referring back to the aforementioned regulation, specifically section 21 NYCRR § 1401.8 (a)(3), it is stated that an agency shall not charge a fee for the review of the content of requested records to determine the extent to which records must be disclosed or may be withheld. According to my understanding, this clause should apply to your review of the 636 pages before their release.

I understand the complexity of this issue and acknowledge that I may have misunderstood some aspects. However, I would appreciate further clarification on the interpretation of this regulation, considering your review of the pages seems to fall under the category of tasks outlined in section (a)(3) of the regulation, which indicates that no charge should be applied.

I am not contesting your dedicated time or the importance of your role in this process. My objective is to ensure that the proposed fee aligns with the principles and regulations set out in 21 NYCRR § 1401.8.

Thank you for your patience and understanding as we navigate this issue. Your assistance and transparency are greatly appreciated.

Dear Christopher Robilotti,

I am writing to appeal the fees associated with my recent Freedom of Information Law (FOIL) request to the South Colonie Central School District. I appreciate your detailed breakdown of the proposed fee, however, I believe there may be a misunderstanding regarding the application of the regulations outlined in 21 NYCRR Part 1401, specifically section 1401.8.

As per your breakdown, the fee includes:

1. 1 hour @ $50.00 - For refining the original request to its current state.
2. 2.5 hours @ $75.00 - For your review of all 636 pages before releasing them.

Upon reviewing the regulations, I would like to draw your attention to the following:

1. 21 NYCRR § 1401.8(a)(2) states that an agency shall not charge a fee for the search for, administrative costs of, or employee time to prepare photocopies of records. This seems to contradict the first part of the fee you have proposed, which charges for the time spent refining the original request.

2. 21 NYCRR § 1401.8(a)(3) states that an agency shall not charge a fee for the review of the content of requested records to determine the extent to which records must be disclosed or may be withheld. This appears to contradict the second part of the fee you have proposed, which charges for your review of the pages before they are released.

3. 21 NYCRR § 1401.8(c)(i) allows an agency to charge a fee based on the hourly salary attributed to the lowest paid employee who has the necessary skill required to prepare a copy of the requested record, but only when more than two hours of the employee’s time is necessary to do so. If the time spent refining the original request and reviewing the pages before they are released is considered as time spent preparing a copy of the requested record, it would seem that the total time spent is less than two hours, and thus, according to this regulation, should not be chargeable.

4. 21 NYCRR § 1401.8(g) allows an agency to waive a fee in whole or in part when making copies of records available. Given the public interest in the requested records and the potential for the fees to be a barrier to access, I would like to request that the South Colonie Central School District consider waiving the fees associated with this request.

I understand the complexity of this issue and the importance of your role in this process. However, my objective is to ensure that the proposed fee aligns with the principles and regulations set out in 21 NYCRR § 1401.8. I would appreciate further clarification on the interpretation of this regulation and a reconsideration of the fees associated with my request.

Thank you for your patience and understanding as we navigate this issue. Your assistance and transparency are greatly appreciated.

To Whom It May Concern:

Please find enclosed a check for $50.00 to satisfy the fee associated with the attached public records request.

Thank you.

Dear Assistant Superintendent Robilotti,

I hope this message finds you well. I am writing to confirm that I have remitted the agreed-upon fee of $50 for the processing of my Freedom of Information Law (FOIL) request.

I understand that this payment is in accordance with the regulations set out in 21 NYCRR § 1401.8, as we discussed in our previous communications. I appreciate your efforts to ensure that the processing of this request aligns with these regulations.

Thank you once again for your assistance and cooperation in this matter. I look forward to receiving the responsive records.

Thank you!

I am writing to follow up on my previous request for documents. I have reviewed the documents provided and noticed that several attachments referenced in the communications were not included in the delivery. I would appreciate if you could provide these missing attachments:

1. "nys-p12.school-reopening-guidance.pdf" and "nys-p12-school-reopening-guidance 7.16.20.pdf" mentioned in Mary Downey's communication on 7/17/2020 1:37pm.

2. Attachments from the email titled "Fwd: NYSSBA Law Conference July 21-22 - Johanning Summary" sent by David Perry on 7/22/2020, 11:30 AM, including "2020_Summer_Law_Agenda.pdf", "01._Safety_Measures_-_slides.pdf", "01._Safety_Measures_-_outline.pdf", "02._Special_Education_-_slides.pdf".

3. "NYS_COVID_Vaccination_Program_Book_10.16.20_FINAL (1).pdf" mentioned in David Perry's email titled "NYS Vaccination Program Guidance".

4. "High Risk School Sports Guidance.docx" mentioned in Anita Murphy's email titled "FW: High Risk School Sports Guidance" dated 1/27/2021, 5:53 PM.

5. "cdc-aap-guidance-school-opening-2021-22.pdf" mentioned in the email from Julie Marlette sent on Thursday, July 29, 2021 4:22 PM.

6. "Letter from Capital Area Pediatricians.docx" mentioned in Anita Murphy's email dated Thu, Oct 14, 2021 at 1:01 PM.

7. Attachments from Lauren Gemmill's email titled "Jan 21 ASI Meeting Minutes and Materials" dated 1/21/2022, 2:52 PM, including "COPS presentation 1.19.22. pptx", "Evaluation Updates_COPS_1.22.pdf", "January State Update 1-20-22. pptx", "TT-Social-Justice-Standards-Anti-bias-framework-2020.pdf", "nys_rti_tac_assessment_audit_revised (002).doc", "1-21-22 ASI Meeting Minutes .docx".

8. "Authenic Spanish literature.pdf" and "Eng CulturallyDiverse Small Group.pdf" mentioned in an email.

9. "Superintendent Letter 08042021 FINAL.pdf" mentioned in an email.

10. "22 23 Report of School Closure and Reopening Memo final.pdf", "2022 Empire State Archives and History Awards Flyer.pdf", "prek-health-services-guidance.pdf", "medication-management.pdf", "Holocaust Instruction District Survey Memo and Questions.pdf" mentioned in an email.

Please let me know if there are any issues with accessing these attachments. I appreciate your assistance in this matter.

I am writing to you in response to your communication dated May 25, 2023, regarding my FOIL request for records related to communications between the South Colonie Central School District and the American Academy of Pediatrics (AAP) or the Council on School Health (COSH).

In your response, you have classified certain documents as "not disclosable" under Section 87 2 of the Public Officers Law, which pertains to inter-agency or intra-agency materials. However, the law also states that such materials are not exempt from disclosure if they are:

1. Statistical or factual tabulations or data;
2. Instructions to staff that affect the public;
3. Final agency policy or determinations;

Given the nature of my request and the public interest in the information sought, I kindly request further clarification on the specific reasons why each of the following documents has been classified as "not disclosable":

1. "nys-p12.school-reopening-guidance.pdf" and "nys-p12-school-reopening-guidance 7.16.20.pdf"
2. "NYS_COVID_Vaccination_Program_Book_10.16.20_FINAL (1).pdf"
3. Attachments from Lauren Gemmill's email titled "Jan 21 ASI Meeting Minutes and Materials" dated 1/21/2022, 2:52 PM, including "COPS presentation 1.19.22. pptx", "Evaluation Updates_COPS_1.22.pdf", "January State Update 1-20-22. pptx", "TT-Social-Justice-Standards-Anti-bias-framework-2020.pdf", "nys_rti_tac_assessment_audit_revised (002).doc", "1-21-22 ASI Meeting Minutes .docx".
4. "22 23 Report of School Closure and Reopening Memo final.pdf", "2022 Empire State Archives and History Awards Flyer.pdf", "prek-health-services-guidance.pdf", "medication-management.pdf", "Holocaust Instruction District Survey Memo and Questions.pdf"

Please provide specific reasons for each document, detailing how they fall under the exemptions of inter-agency or intra-agency materials that are not statistical or factual tabulations or data, instructions to staff that affect the public, or final agency policy or determinations.

Furthermore, I would appreciate if you could explain how these documents qualify as inter-agency or intra-agency materials, given that they seem to pertain to public health guidance and school reopening plans, which are of significant public interest.

Thank you for your attention to this matter. I look forward to your prompt response.

I am writing to appeal the denial of access to certain records related to my Freedom of Information Law (FOIL) request dated March 6, 2023. The request sought records related to communications with the American Academy of Pediatrics and the Council on School Health. The denial of access to these records is inconsistent with the principles of FOIL and the public's right to access information about the operations of public institutions.

The South Colonie Central School District identified several documents that it deemed "not disclosable" under Section 87 2 of the Public Officers Law, which pertains to inter-agency or intra-agency materials. However, the District did not provide any specific reasons or explanations as to why these documents fall under this exemption, nor did it explain why the public interest in disclosure does not outweigh the reasons for denial.

As per the guidance provided by the Committee on Open Government (COOG), FOIL is based upon a presumption of access. All records maintained by the school district are available, except to the extent that the records or any portion of a record can be withheld based on one of the permissible statutory grounds for denial. The COOG has also indicated that when an agency denies access to a record or any portion of a record, it is obligated to provide a reason for the denial in writing and to advise the applicant of their right to appeal that denial.

Based on the advisory opinions shared by the COOG, it is clear that the District's assertion that the records are intra-agency or inter-agency material does not automatically exempt them from disclosure. For instance, in Advisory Opinion 8825, it was stated that "inter-agency or intra-agency materials" do not include statistical or factual tabulations or data, instructions to staff that affect the public, or final agency policy or determinations. Therefore, if any of the withheld documents fall into these categories, they should be disclosed.

I kindly request that you review the content of the records and either disclose them or fully explain the reason for further denial. I look forward to your prompt response within ten business days, as the statute requires.

Thank you for your attention to this matter.