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Decision No. 13,759

Appeal of WALTER F. GREENING from action of Beverly Ouderkirk, Superintendent of the Valley Central School District, regarding access to school records.

Decision No. 13,759

(April 16, 1997)

Anderson, Banks, Curran & Donoghue, Esqs., attorneys for respondent, James P. Drohan, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks access to certain records alleged to be in the possession of the Valley Central School District ("district"). The appeal must be dismissed.

By letter dated May 14, 1996, petitioner asked to inspect certain district records allegedly under Education Law '2116. On June 5, 1996, petitioner inspected the available records and requested copies. On June 12, 1996, petitioner's wife received copies of the requested records after completing a Freedom of Information Law ("FOIL") request.

By letter dated May 31, 1996, petitioner again requested records allegedly under Education Law '2116. Specifically, petitioner asked to review the district's files containing each and every FOIL request made to the district from January 1, 1990 through May 31, 1996. By letter dated June 26, 1996, respondent advised petitioner that he could review the requested files upon completion of a FOIL request. Petitioner apparently refused to complete a FOIL request. Petitioner's wife, however, made a FOIL request for the same records and the district made the requested records available for inspection.

Petitioner contends that he is entitled to review the requested records under Education Law '2116 notwithstanding FOIL. Petitioner further contends that respondent impeded his access to district records by requiring compliance with FOIL.

Respondent maintains that this appeal is moot since the district afforded petitioner the opportunity to review and copy all of the requested records. Respondent further maintains that in this appeal, petitioner relies in part on the regulations promulgated under FOIL. Therefore, respondent contends that I lack jurisdiction over petitioner's claims.

The appeal must be dismissed as moot. The record indicates that petitioner reviewed and received copies of all the available records requested in his letter of May 14, 1996. Furthermore, respondent offered to make the requested FOIL records available to petitioner provided he complete a FOIL request. Accordingly, I find that respondent effectively made all of the requested records available to petitioner.

The appeal must also be dismissed for lack of jurisdiction. Although petitioner alleges that he made his requests under Education Law '2116, it appears that he relies in part on FOIL and the regulations promulgated by the Committee on Open Government. It is well settled that the Supreme Court of the State of New York is the appropriate forum for addressing a violation of FOIL (Public Officers Law '89[4]; Appeal of Goldman, 35 Ed Dept Rep 126; Appeal of Stewart, 34 id. 193; Appeal of Mitzner, 32 id. 101). In fact, I previously refused to exercise jurisdiction in a prior appeal involving FOIL requests by petitioner (Appeal of Greening, 35 Ed Dept Rep 447).

Even if this appeal were not dismissed on procedural grounds, it would still be dismissed on the merits. Based on the record, I find no basis to conclude that respondent denied petitioner access to records under Education Law '2116.

The Freedom of Information Law expressly preserves the right of access to records granted by other provisions of law, such as Education Law '2116 (Public Officers Law '89[6]). Although Education Law '2116 is preserved, it still must be construed together with FOIL (see, Matter of Xerox Corp. v. Town of Webster, et al., 65 NY2d 131; Matter of Duncan v. Savino, et al., 90 Misc 2d 282). Under FOIL, school districts are required to adopt procedures for the inspection and copying of records. Accordingly, a district may reasonably require that the public follow its FOIL procedures in order to review and copy such records. I cannot conclude, therefore, that respondent denied petitioner access to records under Education Law '2116 simply because respondent required petitioner to comply with the district's FOIL procedures. Finally, I note that subsequent to the filing of this appeal, I received a number of letters from petitioner concerning additional requests for records. I have not addressed these additional requests since they were not part of the petition and were not filed in accordance with the Commissioner's regulations (8 NYCRR '276.5).