Lawsuit Against Brooklyn Borough President Eric Adams
A lawsuit has been commenced in Brooklyn Supreme Court against Eric Adams on September 15, 2015 because of his failure to respond to the “FOIL”, The Freedom of Information Law.
There were two forms of information being requested.
Preliminary Evidence of Wrongdoings by Borough President Eric Adams
Based upon MTOPP’s initial investigation there was contradictory information gathered from two governmental agencies concerning the appointment process of 18 new board members in June of 2014. Alicia Boyd, thus filed a FOIL to gather the exact documentation the Borough President used to make his determination, which would include recommendations from the City Council’s office.
Due to the fact that this documentation led to a decision all information leading up to that decision must be made available to the public via a FOIL. However it is apparent that if Borough President Eric Adams did disclose this information, he would be providing evidence of his wrong doings and thus he has refused to provide the information.
Disclosure of Resumes of Community Board members
Because the City Charter treats Community Board members like public officials and employees of the city and there are certain requirements that a community must meet (employment, address etc..) to be eligible for appointment on the community board this information should be made available to the public to ensure that these requirements are being met.
Additionally on the application for community board, potential members are made aware that their information may be subject to FOIL requests, thus their filling out the application demonstrates their own willingness to have this information available to the public.
However, Eric Adams redacted (blacked out) almost the entire resume, thus preventing the public from determining, if they have been legally appointed. Eric Adams stated that to divulge this information would put the board members at risk.
It is believe he is refusing to disclose this information because there might be further violations that have been done. For example, not more than 25% of the board members may be employed by the city. We know that quite a few of the board members are employed not only by the city but by political candidates, which probably goes over the 25%.
Below is the entire Petition.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-against- NOTICE OF PETITION
in his official capacity as
Brooklyn Borough President,
Index No: 11479/2015
Petitioner ALICIA BOYD, acting pro se, as and for her Article 78 petition herein, states as follows.
- Petitioner ALICIA BOYD is a resident of Kings County.
- Respondent ERIC ADAMS is the Brooklyn Borough President.
JURISDICTION AND VENUE
- Venue is proper based on Petitioner's residence and Respondents doing business in Kings County.
- This Court has jurisdiction under Section 7801 of the Civil Practice Law and Rules to review Respondent’s response to FOIL requests.
- On information and belief, in June of 2014, Respondent Eric Adams appointed 18 new board members to Community Board 9, compared to the average of 6 for the other 18 community boards in Brooklyn, an action perceived by Petitioner and other members of the community as Respondent’s attempt to control this particular community board.
- With Respondents 18 new board members, 83% of the Executive Board of Community Board 9 was changed, compared to 0.7% for all other 18 Brooklyn Community Boards.
- Community Board 9, comprised of Crown Heights, Flatbush and Prospect Park, is the densest and second most affordable community in Brooklyn, with 92% of its population residing within a quarter of a mile of the Botanical Gardens and Prospect Park.
- Respondent Adams visited the Crown Heights community on June 8, 2014 and August 15, 2014, describing his vision of changing the residential community into a tourist location, taking advantage of its proximity to the Botanical Gardens and Prospect Park, and developing tall high-rise hotels and apartments all along Empire Blvd and the major street corridors.
- Community Board 9 Executive Board, voted in by the support of Respondent’s new appointees, has held secret meetings, refused to allow residents onto committees, refused to disclose minutes and voting records, created resolutions and procedures without any community input or dialogue, prevented the community from attending meetings, refused to allow residents to video tape meetings and to distribute literature, and has requested and obtained the arrests of community residents at its meetings.
Preliminary Evidence of Wrong Doings
- Residents of Community Board 9 began a series of FOIL requests to various governmental agencies to determine how eighteen new board members were placed on Community Board 9, allowing for a new board to be established at Community Board 9.
- Contradictory information obtained from FOIL requests regarding the recommendation of members to the Community Board was discovered by residents.
- Evidence obtained from the New York City Council, shows that no City Council member recommended any new members to Community Board 9 in June 2014. According to the City Charter, in one given year Council members can recommend 13 members and the Borough President 12. The Borough President appoints all members on the community board but only 12 may be from his recommendations. (attached as Exhibit A)
- However, Pearl Miles, District Manager of CB9 produced public records which stated that three City Council people did recommend people for CB9 board in June of 2014, (attached as Exhibit B).
- Petitioner issued a FOIL request to Respondent dated February 16, 2015, inquiring into the appointment of the eighteen new members appointed by Respondent to Community Board 9, including copies of their resumes or CV’s and of the forms they filled out to apply for appointment (attached as Exhibit C).
- Among other things, Petitioner is seeking to determine if newly appointed members are representative of the community or reside in the community, are involved in real estate or development businesses, political employees and have potential conflicts of interest in acting as members of Community Board 9.
- Petitioner is additionally seeking to determine whether Respondent appointed more of the members of Community Board 9 than he is legally allowed to under the City Charter. The City Charter only allows the Borough President to appoint 12 of his recommendations in any given year.
- Petitioner is also seeking to determine if District Manager Pearl Miles, engaged in unlawful behavior by the falsification of agency records.
Determination of FOIL Requests
- On April 22, 2015, Respondent’s Counsel Andrew Gornardes, responded, providing the applications of the community board members, but with most of the information on the applications redacted except for their affiliations. He provided no documentation regarding the appointment of the 18 new board members. (attached as Exhibit D).
- On May 8, 2015, Petitioner appealed the determination of Andrew Gornardes, objecting to deletion of substantial portions of the requested information and the complete omission of the requested documents for the appointments of 18 new board members. (attached as Exhibit E).
- On May 18, 2015, Ama Dwimoh Esq, appeal officer for Eric Adams, denied the appeal, on the grounds that disclosure of the redacted information would be an “unwarranted invasion of the personal privacy” and “could endanger the life or safety” of the community board members and that documentation for the appointments had been provided. (attached as Exhibit F).
- Petitioner states that the redacted portions of the documents provided were wrongfully withheld under the Freedom of Information Law, Open meetings Law and City Charter.
- The New York City Charter Chapter 68 – §2601 determines that community board members are public servants.
- Furthermore, the courts have determined that the disclosure of public servants information is permissible rather than unwarranted invasion of personal privacy, especially when what is being reviewed is relevant for employment, appointment etc, as has been noted by the New York State Committee On Open Government:
“It is clear that public officers and employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that public officers and employees are required to be more accountable than others. Further, with regard to records pertaining to public officers and employees, the courts have found that, as a general rule, records that are relevant to the performance of a their official duties are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v.NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988);Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d 562 (1986)].”
- New York City Charter Chapter 70 § 2800, sets clear conditions for community board members to be appointed, “No person shall be appointed to or remain as a member of the board who does not have a residence, business, professional or other significant interest in the district”.
- Public Law, Article 6 section 89, states that “disclosure shall not be construed to constitute an unwarranted invasion of personal privacy” if the person consents to the disclosure. The community board application clearly states that information given may be subject to FOIL. Thus the completion of this application attests to the community board member’s willingness for this information to be made public. (attached as Exhibit G)
- Public Officer Law, Article 6 §84, states “The people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations….”
- It is believed by the Petitioner that the Respondent violated Public Officer Law section §87. Access to agency records. (c)iv, by imposing a fee for records that did not constitute an excess of 2 hours to prepare. (attached as Exhibit H)
- Community Board members are treated like public servants and thus their resumes should be made public if conditions for their appointments are a part of the review and determination of said appointments.
- The community board applicants were aware that their information would be able to be reviewed and thus by their willingness to proceed with the application process, shows an agreement for the disclosure of their information.
- Additionally official decisions are being made by Respondent regarding the appointments of community board members thus all documents leading up to these decisions should be made available to the public for review.
- There contains a reasonable assumption, based upon preliminary evidence, that a violation of the law may have occurred in regards to the recommendation and appointment of eighteen new board members. However, without further evidence, from the Respondent contained in the FOIL request this cannot be determined.
Awarding Attorney fees and legal expenses.
- Petition believes this is a meritorious lawsuit, which will allow the community the opportunity to review and gain information concerning decisions being made by the government. However, the community that Petitioner is representing is a moderate income community and thus resources for such lawsuits are limited. The awarding of legal fees and fees, will continue to allow the residents of CB9 to appeal to the courts for the enforcement of the law. In Gordon v. Village of Monticello, Supreme Court, Sullivan County, January 7, 1994, modified 207 AD2d 55, 620 NYS2d 573 (3rd Dept. 1994), reversed on other grounds 87 NY2d 124, 637 NYS2d 961, the courts made the determination "it is very often the possibility of recovering costs and attorneys' fees that gives private citizens like plaintiffs the impetus they need to bring meritorious lawsuits to enforce the Open Meetings”.
A CAUSE OF ACTION
Paragraphs 1 through 32 are repeated as though more fully alleged herein.
- Petitioner has exhausted all administrative remedies and has made no prior request to this or any Court for the instant relief.
- By reason of the foregoing, Petitioner is entitled to judgment pursuant to Article 78 directing Respondents to provide copies of documents responsive to the FOIL Requests with the deleted portions restored and all documentation leading to the recommendation and determination of the 18 new Board members appointed in June of 2014 to Brooklyn Community Board 9.
The New York City Charter Chapter 68 – §2601 Definitions (19) "Public servant" means all officials, officers and employees of the city, including members of community boards and members of advisory committees, except unpaid members of advisory committees shall not be public servants”
New York City Charter Chapter 70 City Government in the Community § 2800. Community Boards. (a) For each community district created pursuant to chapter sixty nine there shall be a community board which shall consist of
(1) not more than fifty persons appointed by the borough president for staggered terms of two years, at least one half of whom shall be appointed from nominees of the council members elected from council districts which include any part of the community district, and
(2) all such council members as non voting members. The number of members appointed on the nomination of each such council member shall be proportional to the share of the district population represented by such council member. The city planning commission, after each council redistricting pursuant to chapter two A, and after each community redistricting pursuant to section twenty seven hundred two, shall determine the proportion of the community district's population represented by each council member. Copies of such determinations shall be filed with the appropriate borough president, community board, and council member. One-half of the members appointed to any community board shall serve for a term of two years beginning on the first day of April in each odd numbered year in which they take office and one half of the members appointed to any community board shall serve for a term of two years beginning on the first day of April in each even-numbered year in which they take office. Members shall serve until their successors are appointed but no member may serve for more than sixty days after the expiration of his or her original term unless reappointed by the borough president. Not more than twenty five percent of the appointed members shall be city employees. No person shall be appointed to or remain as a member of the board who does not have a residence, business, professional or other significant interest in the district. The borough president shall assure adequate representation from the different geographic sections and neighborhoods within the community district. In making such appointments, the borough president shall consider whether the aggregate of appointments fairly represents all segments of the community. Community boards, civic groups and other community groups and neighborhood associations may submit nominations to the borough president and to council members.
PUBLIC OFFICERS LAW, ARTICLE 6 §89. General provisions relating to access to records; certain cases. 2.(c) Unless otherwise provided by this article, disclosure shall not be construed to constitute an unwarranted invasion of personal privacy pursuant to paragraphs (a) and (b) of this subdivision:
i. when identifying details are deleted;
ii. when the person to whom a record pertains consents in writing to disclosure;
iii. when upon presenting reasonable proof of identity' a person seeks access to records pertaining to him or her; or
iv. when a record or group of records relates to the right, title or interest in real property, or relates to the inventory, status or characteristics of real property, in which case disclosure and providing copies of such record or group of records shall not be deemed an unwarranted invasion of personal privacy
3. (a) Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgment of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied, including, where appropriate, a statement that access to the record will be determined in accordance with subdivision five of this section. An agency shall not deny a request on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing or on any other basis if the agency may engage an outside professional service to provide copying, programming or other services required to provide the copy, the costs of which the agency may recover pursuant to paragraph (c) of subdivision one of section eighty-seven of this article. An agency may require a person requesting lists of names and addresses to provide a written certification that such person will not use such lists of names and addresses for solicitation or fund-raising purposes and will not sell, give or otherwise make available such lists of names and addresses to any other person for the purpose of allowing that person to use such lists of names and addresses for solicitation or fund-raising purposes. If an agency determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part. Upon payment of, or offer to pay, the fee prescribed therefor, the entity shall provide a copy of such record and certify to the correctness of such copy if so requested, or as the case may be, shall certify that it does not have possession of such record or that such record cannot be found after diligent search. Nothing in this article shall be construed to require any entity to prepare any record not possessed or maintained by such entity except the records specified in subdivision three of section eighty-seven and subdivision three of section eighty-eight of this article. When an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so. When doing so requires less employee time than engaging in manual retrieval or redactions from non-electronic records, the agency shall be required to retrieve or extract such record or data electronically. Any programming necessary to retrieve a record maintained in a computer storage system and to transfer that record to the medium requested by a person or to allow the transferred record to be read or printed shall not be deemed to be the preparation or creation of a new record.
PUBLIC OFFICERS LAW, ARTICLE 6 §87. Access to agency Records(c) iv.
Preparing a copy shall not include search time or administrative costs, and no fee shall be charged unless at least two hours of agency employee time is needed to prepare a copy of the record requested. A person requesting a record shall be informed of the estimated cost of preparing a copy of the record if more than two hours of an agency employee`s time is needed, or if an outside professional service would be retained to prepare a copy of the record.
PUBLIC OFFICERS LAW, ARTICLE 6 §84. Legislative declaration.
The legislature hereby finds that a free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government.
As state and local government services increase and public problems become more sophisticated and complex and therefore harder to solve, and with the resultant increase in revenues and expenditures, it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible.
The people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality. The legislature therefore declares that government is the public's business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article.
PUBLIC OFFICERS LAW, ARTICLE 6 §87. Access to agency records.
1. (a) Within sixty days after the effective date of this article, the governing body of each public corporation shall promulgate uniform rules and regulations for all agencies in such public corporation pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article, pertaining to the administration of this article.
(b) Each agency shall promulgate rules and regulations, in conformity with this article and applicable rules and regulations promulgated pursuant to the provisions of paragraph (a) of this subdivision, and pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article, pertaining to the availability of records and procedures to be followed, including, but not limited to:
i. the times and places such records are available;
ii. the persons from whom such records may be obtained; and
iii. the fees for copies of records which shall not exceed twenty-five cents per photocopy not in excess of nine inches by fourteen inches, or the actual cost of reproducing any other record in accordance with the provisions of paragraph (c) of this subdivision, except when a different fee is otherwise prescribed by statute.
c. In determining the actual cost of reproducing a record, an agency may include only:
i. an amount equal to the hourly salary attributed to the lowest paid agency employee who has the necessary skill required to prepare a copy of the requested record;
ii. the actual cost of the storage devices or media provided to the person making the request in complying with such request;
iii. the actual cost to the agency of engaging an outside professional service to prepare a copy of a record, but only when an agency`s information technology equipment is inadequate to prepare a copy, if such service is used to prepare the copy; and
iv. preparing a copy shall not include search time or administrative costs, and no fee shall be charged unless at least two hours of agency employee time is needed to prepare a copy of the record requested. A person requesting a record shall be informed of the estimated cost of preparing a copy of the record if more than two hours of an agency employee`s time is needed, or if an outside professional service would be retained to prepare a copy of the record.
2. 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:
(a) are specifically exempted from disclosure by state or federal statute;
(b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article;
(c) if disclosed would impair present or imminent contract awards or collective bargaining negotiations;
(d) are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise;
(e) are compiled for law enforcement purposes and which, if disclosed, would:
i. interfere with law enforcement investigations or judicial proceedings;
ii. deprive a person of a right to a fair trial or impartial adjudication;
iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or
iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures;
i. statistical or factual tabulations or data;
ii. instructions to staff that affect the public;
iii. final agency policy or determinations; or
iv. external audits, including but not limited to audits performed by the comptroller and the federal government; or
(h) are examination questions or answers which are requested prior to the final administration of such questions;
(i) if disclosed, would jeopardize the capacity of an agency or an entity that has shared information with an agency to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures; or
* (j) are photographs, microphotographs, videotape or other recorded images prepared under authority of section eleven hundred eleven-a of the vehicle and traffic law.
* NB Repealed December 1, 2014
* (k) are photographs, microphotographs, videotape or other recorded images prepared under authority of section eleven hundred eleven-b of the vehicle and traffic law.
* NB Repealed December 1, 2014
* (l) are photographs, microphotographs, videotape or other recorded images produced by a bus lane photo device prepared under authority of section eleven hundred eleven-c of the vehicle and traffic law.
* NB Repealed September 20, 2015
3. Each agency shall maintain:
(a) a record of the final vote of each member in every agency proceeding in which the member votes;
(b) a record setting forth the name, public office address, title and salary of every officer or employee of the agency; and
(c) a reasonably detailed current list by subject matter, of all records in the possession of the agency, whether or not available under this article. Each agency shall update its subject matter list annually, and the date of the most recent update shall be conspicuously indicated on the list. Each state agency as defined in subdivision four of this section that maintains a website shall post its current list on its website and such posting shall be linked to the website of the committee on open government. Any such agency that does not maintain a website shall arrange to have its list posted on the website of the committee on open government
WHEREFORE, Petitioner demands judgment pursuant to Article 78 directing respondents to comply fully with the FOIL Request; awarding petitioner her legal fees and expenses; together with such other and further relief as may be just and proper.
DATED: Brooklyn, N.Y.