No additional portions of the Schenectady City School District report on the activities of former facilities director Steven Raucci will be released, a judge ruled Friday.
State Supreme Court Justice Barry Kramer ruled in favor of the school district and against The Daily Gazette and the Times Union in an ongoing dispute over the release of the report on the activities of Raucci, who faces terrorism and arson charges.
Kramer agreed with the school district’s arguments that release of the report would impede the criminal investigation against Raucci. Schenectady County District Attorney Robert Carney had submitted an affidavit saying he requested that e-mails be kept secret to help investigators.
To view the school district report on the activities of former facilities director Steven Raucci, click HERE.
Kramer also said he relied heavily on an affidavit by the independent investigator, Rachel Rissetto, who said she believed that interviews with school employees would be kept confidential. Rissetto was hired by the district to perform an internal investigation and produce recommendations to the board.
Kramer denied a request by the newspapers to review the report himself to confirm the district’s stance that all that could be released had been.
“I find that the public disclosure of any factual information contained in the Rissetto report would cause serious pain and embarrassment,” Kramer ruled from the bench. “I’m not concerned that it would cause embarrassment to Mr. Raucci, but it would clearly cause pain and embarrassment to persons interviewed who volunteered under the representation of confidentiality.”
Kramer found that the report’s release, along with district e-mails, could compromise the ongoing criminal investigation into Raucci’s conduct. The district had released a copy of the report to the public, but it was nearly all blacked out.
Raucci faces trial in March on arson and terrorism charges related to the school district or the CSEA unit he headed.
Raucci is accused of planting explosive devices at the homes and on vehicles of people he considered his enemies. No one was injured in the four explosions that resulted, authorities said.
School district attorney Shari Greenleaf applauded the ruling afterward.
“I think the district was vindicated by the court,” Greenleaf said, noting that the court found the district’s actions proper under the Freedom of Information Law.
Robert Freeman, executive director of the state Committee on Open Government, who was present in the courtroom, said afterward that his view is that the report has nothing to do with the criminal proceedings against Raucci.
Aside from the legal arguments, Freeman said the judge should have reviewed the report himself.
Daily Gazette Managing Editor Judy Patrick said she was stunned by the decision.
“We filed this lawsuit because we deeply believe in the public’s right to know,” she said. “This decision, however, keeps them in the dark.”
She said no decision has been made on whether the paper would appeal the decision.
Freeman said he expected that an appeal would be successful and the ruling reversed.
“I believe there is ample precedent for an appellate court to do so,” he said.
Attorneys for both sides appeared in court Friday, having already submitted written arguments to the judge. Kramer also heard arguments in court, many of which were the same outlined in written filings.
Attorneys for the newspapers had argued that the judge should review the report in chambers to confirm the school district’s assertion that it complied with the law when it released a heavily redacted version of the report.
Andrew Rose, attorney for The Daily Gazette, said that the paper was at a disadvantage because it did not know what was in the report. The paper, he said, was operating with “one hand tied behind its back” because all they had to go on was the district’s assertions that the blacked-out parts, which comprised most of the released report, were properly withheld.
Rose asked the judge to at least review the report himself, or “in camera.”
“I can’t say with 100 percent certainty that they’re wrong,” Rose said. “I’ll be the first to admit that. That’s why you need to do an in-camera inspection of the report.”
Still, Rose argued that the Freedom of Information Law requires disclosure of facts and objective information.
Rose gave the example of a fictional Mr. Smith saying that he saw something, did something and said something, with a report going on to give the investigator’s opinion or recommendation.
What Mr. Smith saw, did and said would be public, Rose argued, while the opinion could be withheld.
The district, he said, simply could not have analyzed everything in the report and concluded that essentially all of it could be withheld.
Kramer ruled that the report was largely Rissetto’s opinions and recollections, with her accounts of meetings with employees, and not disclosable.
Rissetto was paid $100 an hour for her work; the report cost $13,000.
Freeman later echoed comments from the newspapers’ attorneys.
“There is no doubt that portions with opinions were properly withheld,” Freeman said. “It is inconceivable, however, that those recommendations were not preceded by renditions of factual information.”
The newspapers also argued that promises of confidentiality from persons who have no authority to make such promises cannot be upheld.
But Kramer found that the interviews were not part of the district’s ordinary work and were voluntary on the condition that they were confidential.
The comments from the employees also concerned unsubstantiated conduct against Raucci.
Arguing for the school district was attorney Patrick Fitzgerald.
Internally, the report has proven to be of “tremendous value” and is being put to good use, Fitzgerald said.
But the report itself is not public, with multiple exceptions to the Freedom of Information Law coming into play on various sections, he said.
One of those exceptions is interagency communication.
The report is not a final determination, it’s not instructions to staff that affect the public and it’s not an external audit under the provisions of FOIL, Fitzgerald said.
In creating the report itself, Rissetto offered confidentiality to employees who otherwise could have refused to cooperate, Fitzgerald said.
“That’s exactly what the intra-agency exemption is all about,” Fitzgerald said. “It allows governmental bodies to go out there and do this type of work unfettered by the constant worry that everything they do or say as part of the process is going to be reported in the newspaper or out on the streets the next day.”
At the time Rissetto was hired, the school board was publicly saying that it hoped to release as much of the report as possible in the interest of transparency.
Kramer did leave open the possibility of revisiting the issue of e-mails later, possibly after Raucci’s trial. The Committee on Open Government’s Freeman, however, argued later that the trial should have had no bearing on the release of the report.
“The prejudice that could result from the release of this information,” Kramer ruled on the issue of the e-mails, “at this time outweighs the public right to know. It’s the timing that’s relevant to me. I am not going to compromise the state’s rights or Mr. Raucci’s rights to a fair and untainted trial.”