As a Charter School, you are tasked with starting, filling, staffing and operating a school in an area where there are always one or more schools already operating. You are tasked with formulating a mission, a method and a system to deliver better results than your neighbor schools, and you are tasked with doing this with far less resources than other members of the Public School System. In being a Charter School, you are tasked with an unprecedented demand for efficiency and effectiveness. You are tasked with this demand for efficiency while simultaneously being required to comply with municipal compliance regulations that are inefficient from a municipal perspective. One of these compliance requirements is the Freedom of Information Law (FOIL). FOIL is New York State's records access law. The main goal of FOIL is to achieve the maximum level of transparency and records access while protecting information that should be kept private, such as personal contact information, and which needs to be protected for the municipal entity to effectively operate. Although this regulation is designed to be efficient, it is the resources of the requesting party that receives the most consideration. This is important, because in operating your school efficiently, it is imperative that you allocate and protect the resources that your school needs to operate. These include both fiscal and human resources.
In order to adequately navigate FOIL, it is necessary to understand two things: 1 - FOIL requests records, not information; and 2 - Records are accessible unless there is an exemption. You will often find that although a record may be subject to FOIL, certain information within that record may be exempted. There are a dozen broad categories of records which are exempted from FOIL, and each of those categories can be broken down further into subcategories. Novels could be written about each one of them, and it would be futile to try and go through each. If you would like a more thorough analysis of each category, please feel free to contact me. As the preferred counsel for the North East Charter School Conference, we are happy to provide complimentary seminars to member schools. However, for the purpose of this blog, we'll go through one "simple" example, to highlight points which should be of concern.
In this hypothetical, a Board of Trustees is considering a lease for classroom space at Tax Parcel X. The owner is a supporter of Charter Schools and is seeking a reliable tenant to mitigate against the recent decline of property values generally, and the recent loss of an anchor tenant due to bankruptcy. He has approached the school with an offer slightly below market price, hoping to fill the space quickly with your school. On the face of the applicable FOIL section, this record seems to be exempt, stating:
"Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that....if disclosed would impair present or imminent contract awards or collective bargaining negotiations"
This, of course, should be easy. Your school is engaging in an arm's-length transaction with an owner. If a request is made for, say, "all records related to the Lease relating to Tax Parcel X", your first reaction might be to deny this request because simply disclosing those records might impair your ability to negotiate effectively, and therefore impair an imminent contract award. You might worry, for example, that an investor or developer might take note of the owner's distress and make an offer on the property prior to the execution of the lease, and offer an inflated price to the Charter School thereafter. You might worry that other tenants might take note of the price and reach out to the owner offering a higher monthly rent.
These, of course, are reasonable assumptions based upon the literal text of the law. However, courts and government agencies have read additional factors for consideration into this exemption. These additional factors are read into virtually every FOIL exemption. In this case, after doing research, you might start to doubt the exempt status of the lease, as you would find that an equality of knowledge of the lease terms between the parties to the contract would effect the analysis. Here, the Landlord and the School are both fully aware of the terms of the contract, and there is no initial bidding process. Although its possible that the exemption might still be applicable, this is not an assumption you want to make without verifying the applicability of the exemption. You would need to review both advisory opinions and judicial interpretations of this exemption to verify whether, under the precise circumstances faced by the school, the exemption would apply. It would be advisable to consult an attorney prior to denying this request. An attorney experienced in FOIL requests might save your school valuable staff time, and may be able to provide an answer in a matter of minutes, whereas your staff and administrators might have to research this topic for several hours or days before you are certain of the correct response. An attorney experienced in FOIL requests will also give you the peace of mind that comes with experienced counsel, reducing your exposure to potential liability.
The key factor weighing in favor of consulting an attorney to verify your position in response to a FOIL request is exposure to potential litigation. Although there are no fines associated with wrongly denying a FOIL request, a Court can order expensive training, and if the request was denied without a reasonable basis or reasonable reliance upon an exemption, the Court is very likely to award the Petitioner attorneys' fees. These types of awards may not be covered by your insurance policies, and can number in the tens of thousands of dollars. Becoming familiar with FOIL exemptions, combined with experienced Counsel, can afford valuable protection to your School. Taking time to familiarize yourself with the ins-and-outs of FOIL will, in turn, help your school protect the resources, both fiscal and human, necessary to your continued and effective operation.