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Decision No. 14,660

Appeal of JOHN D. ROWE from action of the Board of Education of the Moravia Central School District and William Tammaro, Superintendent, regarding access to school district records.

Decision No. 14,660

(December 5, 2001)

Hancock and Estabrook, LLP, attorneys for respondents, John M. Monahan, Esq., of counsel

MILLS, Commissioner.--In two separate appeals, petitioner appeals respondents' actions concerning access to certain records in the possession of the Moravia Central School District ("district"). Because both appeals relate to requests for access to records under the Freedom of Information Law (FOIL), they are consolidated for decision. The appeals must be dismissed.

The first appeal concerns petitioner's March 16, 2001 FOIL request to the district for "copies of encumbrance outstanding reports dated 7-31-96, 6-30-97, 6-30-98, 6-30-99, 6-30-2000." On March 21, 2001, respondent superintendent advised petitioner in writing that access was approved and that, "We will do our best to provide the information requested in 45 business days."

The second appeal concerns petitioner's three FOIL requests to the district, dated March 22, 2001:

Expenditures made for all administrator and school board conferences attended during the 1999-00 and the 2000-01 school years to date by members.

The salaries, raises given and merit pay in dollar amount given of [sic] administrators in the Moravia Central School District beginning with the 1993-94 school year through the day of this request March 22, 2001.

The taxpayer cost of the board of education and administration to attend the lobbying session in Albany on March 21, 2001.

On March 26, 2001, respondent superintendent wrote to petitioner that access was approved and the district would "provide the information in 45 business days."

In both appeals, petitioner contends that the district constructively denied his FOIL requests because the superintendent required him to wait 45 business days for the records. He contends that no reasonable circumstance exists for the delay. Petitioner is requesting that I direct the district to comply with his requests for records in a timely manner, in accordance with the requirements of FOIL.

Respondents contend that the Commissioner lacks jurisdiction to decide claims asserted under FOIL. In addition, respondents contend that petitioner did not properly serve the petitions in these appeals, that petitioner is time-barred from bringing these claims, that he fails to state a cause of action, that petitioner did not exhaust administrative remedies prior to commencing these appeals, that he seeks a decision from the Commissioner for a matter not in controversy, that petitioner's claims are premature, that petitioner seeks an advisory opinion, and that he is not an aggrieved party.

Petitioner's allegations in this case concern whether the district violated FOIL. The Commissioner has repeatedly held that an appeal under Education Law "310 is not the proper forum for the enforcement of an alleged FOIL violation (Appeal of Christe, 39 Ed Dept Rep 685, Decision No. 14,349; Appeal of Breud, 38 id. 748, Decision No. 14,133; Appeal of Aarseth, 37 id. 426, Decision No. 13,895). 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 Christe, supra). Therefore, I have no jurisdiction over petitioner's claims. In light of this disposition, I will not address the parties' remaining contentions.