Skip to main content

Decision No. 13,895

Appeal of KARL AARSETH from action of Peter Scordo, Superintendent of the Malverne Union Free School District regarding access to district records.

Decision No. 13,895

(March 23, 1998)

Ehrlich, Frazer & Feldman, attorneys for respondent, Florence T. Frazer, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks access to certain records of the Malverne Union Free School District ("district"). The appeal must be dismissed.

On July 28, 1997 petitioner submitted a written Freedom of Information Law ("FOIL") request to the district’s records access officer for three sets of records. The district provided information concerning two of his requests, however, it denied his request for "any and all correspondence received by the Board from the District lawyers for the months of September 1995 and September 1996." On November 10, 1997 petitioner again requested this correspondence. On November 14, 1997 the district clerk denied petitioner’s request on the basis that such records were expressly protected from disclosure by the attorney-client privilege.

Petitioner contends that this denial violates FOIL and Penal Law "240.65. He also alleges that the district’s FOIL denial letter failed to inform him of the place to file his appeal.

Respondent alleges that the appeal must be dismissed for lack of jurisdiction, and that even if the Commissioner had jurisdiction over FOIL disputes, FOIL makes an exception for those records that are specifically exempted from disclosure by state or federal statute. Respondent also alleges that its failure to notify petitioner of the place to file an appeal is a deminimis error. Respondent further contends that the petition was not properly verified by the petitioner and should be dismissed.

The substance of petitioner’s allegations is that the district violated FOIL. Therefore, this petition is not properly before the Commissioner. The Commissioner has repeatedly held that a "310 appeal is not the proper forum for the enforcement of an alleged FOIL violation (Appeal of Hendrick, 37 Ed Dept Rep 188; Appeal of Lawson, 33 id. 427, Appeal of Damilatis, 33 id. 465, and Appeal of Mitzner, 32 id. 101). The appropriate forum for resolving a claim under FOIL is the Supreme Court of the State of New York (Public Officers Law "89[4]; Appeal of Greening, 35 Ed Dept Rep 447). Accordingly, I have no jurisdiction over petitioner’s claims. In light of this disposition, I will not address the parties’ remaining contentions.