Personnel and disciplinary record, subject: the late C/O Anthony Seminerio (ret.)

To Whom It May Concern:

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

The complete personnel record of retired Corrections Officer Anthony Seminerio and all disciplinary records that identify Seminerio as a subject. For specificity and to rule out duplicates, the subject Seminerio's birthdate was February 15, 1935. His service dates are unknown; however, by inference, he could not have been hired earlier than 1956 (age of eligibility) and could not have served any later than 1978 (the year he took elected office).

It is the requesting party's understanding that pursuant to legislation signed by the Governor of the State of New York, the law that prevented disclosure of this material (Civil Rights Law Section 50-a) has been repealed and all such records are now covered by the Freedom of Information Law.

In accordance with the Freedom of Information Law as it has been amended by aforementioned legislation, records that may be released include "the complaints, allegations, and charges against an employee; the name of the employee complained of or charged; the transcript of any disciplinary trial or hearing, including any exhibits introduced at such trial or hearing; the disposition of any disciplinary proceeding; and the final written opinion or memorandum supporting the disposition and discipline imposed including the agency's complete factual findings and its analysis of the conduct and appropriate discipline of the covered employee."

Under the standard set by multiple court rulings, Freedom of Information Law uses a "balancing test" method of weighing privacy interests favoring redaction/denial vs. the public interest in favor of disclosure. This matter is of clear public interest for the following reasons: Anthony Seminerio was a public figure who served as a New York State Senator from 1979 through 2009. Seminerio was convicted of corruption related charges in 2009.

The privacy interest in favor of redaction or denial is diminished as Anthony Seminerio has been widely reported as deceased since 2011.

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,

T. McElwee

To: Lisa Richardson, as Records Appeal Officer

Re: FOIL, Tracking # 2020-072-00058, "Personnel and disciplinary record, subject: the late C/O Anthony Seminerio (ret.)"

I write to make an administrative appeal of the agency's constructive denial of the above-captioned FOIL request, filed on June 17, 2020. For your reference, the text of the original request follows my sign-off.

New York Freedom of Information Law N.Y. Pub. Off. Law Ch. 47 Art. 6 § 89(3)(a) specifically requires that an agency provide a response to a public records request within 5 business days of receipt of that request. This acknowledgment due date was June 24, 2020. I believe I have been generous and understanding of the agency's issues in the COVID-19 epidemic; however, given a generous amount of additional time, the Agency has yet to grant the necessary acknowledgment.

Please note that under §89(3)(a) of the Freedom of Information Law, there are the following requirements of an acknowledgement: “within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied...”

By failing to respond to this request within the legally-mandated timeframe, this agency is in violation of the law by making a constructive denial. I therefore exercise my right of administrative appeal, with the understanding that the agency is required to respond within 10 days of receipt of this correspondence.

If the Appeals Officer does not respond within that timeframe it is generally understood that the agency is continuing to constructively deny access to records, and as such the agency is open to lawsuit under Article 78 of the Civil Practice Law and Rules and the possibility of a court order that includes court costs being recovered at the agency's expense.

Please provide acknowledgment of this request and the responsive materials forthwith. If such materials cannot be produced, please provide an appropriate explanation for this rejection, as is dictated by this agency's legal obligations under the New York Freedom of Information Law. Your accelerated attention to this matter will be greatly appreciated.

T. McElwee

Original request text follows:

To Whom It May Concern:

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

The complete personnel record of retired Corrections Officer Anthony Seminerio and all disciplinary records that identify Seminerio as a subject. For specificity and to rule out duplicates, the subject Seminerio's birthdate was February 15, 1935. His service dates are unknown; however, by inference, he could not have been hired earlier than 1956 (age of eligibility) and could not have served any later than 1978 (the year he took elected office).

It is the requesting party's understanding that pursuant to legislation signed by the Governor of the State of New York, the law that prevented disclosure of this material (Civil Rights Law Section 50-a) has been repealed and all such records are now covered by the Freedom of Information Law.

In accordance with the Freedom of Information Law as it has been amended by aforementioned legislation, records that may be released include "the complaints, allegations, and charges against an employee; the name of the employee complained of or charged; the transcript of any disciplinary trial or hearing, including any exhibits introduced at such trial or hearing; the disposition of any disciplinary proceeding; and the final written opinion or memorandum supporting the disposition and discipline imposed including the agency's complete factual findings and its analysis of the conduct and appropriate discipline of the covered employee."

Under the standard set by multiple court rulings, Freedom of Information Law uses a "balancing test" method of weighing privacy interests favoring redaction/denial vs. the public interest in favor of disclosure. This matter is of clear public interest for the following reasons: Anthony Seminerio was a public figure who served as a New York State Senator from 1979 through 2009. Seminerio was convicted of corruption related charges in 2009.

The privacy interest in favor of redaction or denial is diminished as Anthony Seminerio has been widely reported as deceased since 2011.

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,

T. McElwee