Records re: retaliation for reporting sexual harassment at SUNY Albany

Christopher Philippo filed this request with the State University of New York at Albany of New York.
Status
Awaiting Acknowledgement

Communications

From: Christopher Philippo

To Whom It May Concern:

Pursuant to the New York State Freedom of Information Law (1977 N.Y. Laws ch. 933), I hereby request the following records:

1) Advice given by the NYS Committee on Open Government to the University to stop responding to Freedom of Information requests made by Christopher Philippo.

2) The December 6, 2011 "'cease and desist' order" Clarence L. McNeill alleged in a December 9, 2011 e-mail attachment that he had imposed on December 6, 2011: "I have been notified that you violated the 'cease and desist' order I imposed on December 6, 2011. Specifically, you contacted members of the Communications [sic] Department in an attempt to disparage the name of Dr. Barberich."

3) Jeanette Altarriba's communication with the Office of the Vice President for Student Success concerning Michael W. Barberich's sexual harassment.

4) The written University at Albany policy that reports of retaliation should NOT be made to the Director of Conflict Resolution and Civic Responsibility (Clarence L. McNeill) but to some other office (see below quotes).

With respect to the first item, according to a Witness Interview Statement in US Department of Education's Office for Civil Rights (OCR) Case Number: 02-12-2157, an attorney from the SUNY Office of the General Counsel (possibly John Reilly or Janet Thayer) stated to OCR that "[FOI] requests had reached the point where the NYS Committee on Open Government had advised the University to stop responding to the complainant because in the view of that office his persistent FOIA [sic] requests had risen to the level of harassment."

A FOIL request to the NYS Department of State Committee on Open Government for that alleged advice stated "No such records [of Advice given by the NYS Committee on Open Government between June 3, 2012 and August 3, 2012 to stop responding to Freedom of Information requests made by Christopher Philippo] were prepared by any staff person or member of the Committee on Open Government. That being so, I hereby certify there are no records to be disclosed or that are being withheld."
https://www.muckrock.com/foi/new-york-16/advice-by-com-on-open-govt-not-to-reply-to-foi-requests-9586/
did not feel it necessary to contact you."

I would be hard to believe such advice could ever have been given. The number of things requested, and the number of people contacted, was considerably smaller than the “requests for booklists [sent] to nearly four hundred [SUNY Albany] faculty members” made by a commercial requester, a bookstore. The NYS Department of State Committee on Open Government did not find commercial FOIL requests sent to nearly 400 different people to be burdensome or persistent: http://docs.dos.ny.gov/coog/ftext/f11905.htm nor did the Appellate Division of the Supreme Court of the State of New York, Third Department: MATTER OF MOHAWK BOOK COMPANY, LTD. v. State University of New York, 288 AD 2d 574 (2001) http://scholar.google.com/scholar_case?case=688499261112129695

With respect to the second item, as I had written John Murphy, Christine Bouchard, George M. Philip, and Thomas Gebhardt on July 9, 2012 1:41 PM, "I still haven't seen the alleged December 6, 2011 "'cease and desist' order" that the December 9, 2011 "'cease and desist' order" had stated is still in effect, a prior alleged order that UPD would thus also be enforcing because you've told me they're enforcing the December 9, 2011 one. As far as I can tell, Mr. McNeill might be referring to an e-mail he'd sent with the subject line "good morning" that did not have a "'cease and desist' order" in it or attached to it". Mr. McNeill did not refer to his December 9, 2011 e-mail attachment as a "'cease and desist' order" within that attachment; John Murphy referred to it as one in his July 3, 2012 3:48 PM e-mail "C&D Order" sent to me, Christine Bouchard, Clarence L. McNeill, J. "Frank" Wiley and George M. Philip, in relevant part: "Mr. McNeill did in fact issue you a cease and desist order dated December 9, 2011". Clarence L. McNeill did not correct Mr. Murphy to note that the December 9, 2011 e-mail attachment was not a "cease and desist order", but then he did not correct Mr. Murphy about his claim "There is no indication of a copy being sent to your mother"; her e-mail address was in the cc line of the e-mail. Mr. Murphy claimed Clarence L. McNeill had included a falsehood in the December 9, 2011 e-mail attachment; "the letter in question was not sent to Mr. Barberich although there is a clear indication at the bottom which would contradict that assertion. Mr. McNeill communicated to me that [he] simply notified [Dr.] Altaribba and [Mr.] Barberich that [he] had issued the C&D (cease & desist) and that UPD (University Police Department) was notified.'" That Mr. McNeill had written me and my mother to indicate he'd provided my mother's home address to Mr. Barberich after I'd reported Mr. Barberich's academic dishonesty, sexual harassment, and retaliation had been rather alarming; that (if) he had lied to us does not make matters any better, and the apparent lack of concern by John Murphy, Christine Bouchard, J. "Frank" Wiley, and George M. Philip about that the address having been provided or about it having been a lie is quite disturbing.

In the December 6, 2011 e-mail, Mr. McNeill had written in part: "I think your decision to refrain from attending class today is a good one. However, I would like to add that you should refrain from any and all communications with (or about) Prof. Barberich from this moment forward." He was adding advice to refrain from reporting Michael W. Barberich's academic dishonesty, faculty ethics violations, sexual harassment, and retaliation ("any and all communications with (or about) Prof. Barberich") on to what had been a voluntary, unprompted choice to refrain from attending Prof. Barberich's class due to my alarm regarding his behavior and my unwillingness to ever be around him again even in the company of others.

The University defines sexual harassment as a form of sexual assault: "Sexual assault is a broad term that includes forcible touching, stranger assault, acquaintance rape, sexual harassment" http://www.albany.edu/counseling_center/sexualviolence/sexualassault.shtml The University states in its "Statement of Principles and Rights for Victims of Sexual Assault" that "Victims shall: [...] Be free from unwanted pressure from campus personnel to: [...] Refrain from reporting sexual assaults for any reason" http://www.albany.edu/counseling_center/sexualviolence/statement.shtml Mr. McNeill was submitting me to unwanted pressure to refrain from reporting Michael W. Barberich's sexual assaults and retaliation (among other things).

The December 9, 2011 e-mail attachment also referenced Clarence L. McNeill's December 8, 2011 e-mail. Clarence L. McNeill's December 8 2011 10:39 AM e-mail stated in part: "Continued attempts to discredit/disparage Prof. Barberich will only provide him fuel in a civil/criminal arena and make you out to look like you are harassing him (and now possibly Dr. Altarriba). [¶] Please take this as a final warning. You need to forget about Prof. Barberich." Those threats again violated the "Statement of Principles and Rights for Victims of Sexual Assault": "Victims shall: [...] Be free from any threat of retaliation or other attempt to prevent the reporting of sexual misconduct".

The University encourages students to report sexual assault (which includes sexual harassment) to members of the university, including academic advisors and members of the faculty:

"What you can do if you feel you are a victim of, or if you observe acts of, sexual harassment: [...] Contact University people or community agencies that can help you. [...] Students may wish to talk with a member of the counseling center staff, a residence hall director, an academic advisor, a residence assistant, a faculty member, or a supervisor.” http://www.albany.edu/diversityandinclusion/sexual_harassment_policy.php

"Students are encouraged to report all incidents of sexual assault/sexual violence to the police or a member of the University in order to receive help in accessing support services and in referring the sex offender, if a student, to the on-campus student conduct system. The decision to report must be made by the victim and shall be respected by all members of the University.” http://www.albany.edu/counseling_center/sexualviolence/report.shtml

Faculty in turn are obligated to report sexual harassment:

"The best thing you can do for the student is to listen to and believe them. [...] The student has the option of having their name released to the Office of the Vice President for Student Success. [...] If the student is not willing to have their name released, it is still your obligation to contact the Office of the Vice President for Student Success, 518-956-8140, to report that an assault has occurred as well as the general time, date and location of the assault."
http://www.albany.edu/counseling_center/sexualviolence/how_to_help.shtml

Clarence L. McNeill seems to have gone so far in denying my having reported sexual harassment to him (despite my having done so both in writing and in person) as to make the remarkable claim to the federal government that not one person has ever reported sexual harassment to him prior to reporting it to the campus police:

"The Director also informed OCR that the Office of Conflict Resolution typically receives complaints from the University Police Department, which the University Police Department has already investigated" (8).
"The Director noted that in theory, if a complaint of sexual harassment, including sexual assault, came to his office first, he would conduct the investigation. He noted, however, that in his six years as Director, he has never received such a complaint first; instead, these are usually referred by the University Police Department” (8 n. 7).
http://www2.ed.gov/documents/press-releases/suny-new-york-letter.doc

If Clarence L. McNeill characterizes all attempts by students, faculty, staff, administrators, visitors to campus, etc. to report sexual harassment or sexual assault to him as attempts to disparage someone's name, discredit/disparage, or harass as he did with me, then it would be no wonder that he would claim nobody has ever reported sexual harassment or sexual assault to him.

Aside from reporting it to Clarence L. McNeill, I reported it to a number of members of the faculty, staff, and administration. Perhaps the only one who might possibly have reported it as required to the Office of the Vice President for Student Success was former Communication Department Chair Jeanette Altarriba.

Regarding the third item:

Though Jeanette Altarriba had forced me to remain in Mr. Barberich's class all semester continuing to be subjected to his unprofessional, offensive, and alarming behavior as a condition of receiving my degree and graduating over my objections, and she had refused to grant me the academic accommodation I had repeatedly requested that would permit me to drop the course, she had expressed appreciation for my reporting reporting Mr. Barberich's academic dishonesty and sexual harassment and had even encouraged me to do so. In her October 21, 2011 11:08:10 AM e-mail: "Thank you for your observations, I do appreciate them." In her November 9, 2011 3:55:32 PM e-mail, for example: "Thank you for writing, as you have every right and have been encouraged, to do so [...] Do not consider that you have become any kind of 'target' [for retaliation] as some have suggested, that's simply not the case". In her November 21, 2011 10:30:41 AM she wrote, "As Chair of the Department of Communication, I do not take lightly any comments or reports from in-class behaviors that offend students or otherwise make them uncomfortable. As you brought issues to my attention, they have been addressed through internal mechanisms to do so." As the internal mechanism involves reporting to the Office of the Vice President for Student Success, presumably she did so; however, when on November 21, 2011 10:39 AM I wrote: "Given that nothing's changed, have the issues been sufficiently addressed through internal mechanisms, I wonder? My thought is that the lack of change indicates the issues can't possibly have been addressed sufficiently yet", she did not reply.

SUNY Albany evidently did not turn over anything to the US Department of Education's Office for Civil Rights indicating that Jeanette Altarriba had reported the sexual harassment, or at any rate OCR did not provide anything to me indicating that she had done so. Given that in 2011 Jeanette Altarriba was an interviewer on the search committee for a Coordinator for Sexual Assault and that she was also chair of the Presidential Advisory Committee on Sexual Assault ( http://www.albany.edu/psychology/files/CV_Altarriba_vita_1013.doc ), that is especially dismaying.

With respect to the fourth item:

"Retaliation is an intentional act taken against an individual who initiates any sexual misconduct complaint, including stalking or intimate partner violence, pursues legal recourse for such a complaint, or participates in any manner in the investigation of such a report. Any act of retaliation is prohibited and is subject to judicial referral. Information on how to report retaliation is found in Appendix J."
http://www.albany.edu/studentconduct/prohibited_conduct.shtml

"Any threat of retaliation or other attempts to prevent the reporting of sexual misconduct will be prohibited and is subject to disciplinary action. Reports of retaliation should be made to the Director of Conflict Resolution and Civic Responsibility (518-442-­5501) and/or the Associate Director of Residential Life/Quad Supervisor (518-442­-5875) who will assist in filing a complaint for university disciplinary action."

"Definition: Retaliation is an intentional act taken against an individual who initiates any sexual misconduct complaint, including stalking or intimate partner violence, pursues legal recourse for such a complaint, or participates in any manner in the investigation of such a report. Any act of retaliation is prohibited and is subject to judicial referral."
http://www.albany.edu/studentconduct/appendix-j.shtml

"That would not be reported to me."- Director of Conflict Resolution and Civic Responsibility Clarence L. McNeill, "RE: retaliation?" December 9, 2011 12:44:30 PM EST. E-mail from Clarence L. McNeill to Chris K. Philippo

A request for the third item had originally been made on June 4, 2012 9:13 AM. The June 28, 2012 10:29 AM reply included the June 4, 2012 9:13 AM but left out any response to the request for "the written University at Albany policy that reports of retaliation should NOT be made to the Director of Conflict Resolution and Civic Responsibility but to some other office".

If my request is too broad or does not reasonably describe the records, please contact me via email so that I may clarify my request, and when appropriate inform me of the manner in which records are filed, retrieved or generated.

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, 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,

Christopher Philippo

- - -
"Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act" 20 U.S.C. § 1092(f) (17)

"Nothing in this subsection shall be construed to permit an institution, or an officer, employee, or agent of an institution, participating in any program under this subchapter and part C of subchapter I of chapter 34 of title 42 to retaliate, intimidate, threaten, coerce, or otherwise discriminate against any individual with respect to the implementation of any provision of this subsection."

From: MuckRock.com

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I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on March 28, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed.

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From: MuckRock.com

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I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on March 28, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

From: MuckRock.com

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I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on March 28, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thanks for your help, and let me know if further clarification is needed.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on March 28, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thanks for your help, and let me know if further clarification is needed.

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