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Decision No. 13,782

Appeal of ROBERT D. TILDEN, from action of the Board of Education of the Odessa-Montour Central School District, Superintendent Donald Gooley and Board President Willie Pittman, regarding document production.

Decision No. 13,782

(June 25, 1997)

Sayles, Evans, Brayton, Palmer and Tifft, Esqs., attorneys for respondent, James F. Young, Esq., of counsel

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

Petitioner is a member of the Odessa-Montour Transportation Association (hereinafter the "Association"), a collective bargaining unit, representing bus drivers and mechanics. The Association and the district have been embroiled in an ongoing labor dispute that has been litigated before the Public Employment Relations Board ("PERB") with appeals currently pending in the courts. After the Association and the district were unsuccessful in bargaining a successor to the collective bargaining agreement that expired in 1991, the district laid off all of the employees in the Association effective July 1, 1993 and contracted out the work formerly performed by those employees.

Petitioner, who had represented the Association in the ongoing collective bargaining negotiations, initiated a series of Freedom of Information Law ("FOIL") requests to the school district, primarily directed to the district's Records Access Officer, Superintendent Donald Gooley. After addressing correspondence to the Board President, Willie Pittman, concerning Superintendent Gooley's response to petitioner's various FOIL requests and not receiving a satisfactory response to his complaints, petitioner initiated this appeal. Petitioner subsequently submitted an "amendment" to his original petition for my consideration on June 26, 1996.

As a preliminary matter I will treat the "amendment" to petitioner's appeal as a request to file additional pleadings in accordance with Commissioner's Regulations '275(3)(b). Insofar as petitioner has made a showing that the material contained in his additional pleading was not available at the time that he submitted his original petition, I will consider that material. However, two of the new exhibits are newspaper articles and petitioner may not rely on newspaper accounts to prove his case since they do not constitute evidence of the truth of statements contained in them (Appeal of Toftegaard, 25 Ed Dept Rep 159; Appeal of Buckley, et al., 32 id. 442).

Petitioner's claims amount to a dispute with Superintendent Gooley, the board president and other members of the board with respect to his FOIL requests. The appropriate forum for addressing alleged FOIL violations is the Supreme Court of the State of New York, not a '310 appeal to the Commissioner of Education (Appeal of Kushner, 36 Ed Dept Rep 261; Appeal of Goldman, 35 id. 126; Appeal of Mitzner, 32 id. 101; Application of Eisner, 31 id. 517). Petitioner's request that I direct my Office of Education Management Services to conduct an audit of the district's transportation arrangements with a private contractor does not request relief that may be granted. A '310 appeal is appellate in nature and does not encompass audits.

To the extent that petitioner is alleging that Superintendent Gooley has ignored the duties and responsibilities of his office and his position as records access officer, the remedy for that complaint lies in an appropriate appeal of his decisions as records access officer to the courts (Appeal of Kushner, supra). To the extent that petitioner alleges that the board president and/or board members have been derelict in their duties by supporting the superintendent's decisions with respect to petitioner's FOIL requests, petitioner has failed to state a claim upon which relief may be granted (Appeal of Goldman, supra). All of petitioner's claims relate to FOIL requests and the response or lack of response by district personnel and/or individual board members.

In addition, insofar as respondent board has refused to answer specific questions posed by petitioner, (as opposed to responding to a request for documents pursuant to FOIL), in light of the ongoing litigation between the Association and the district, I find that respondent's actions in this regard have been rational and reasonable.