I have had the occasion to talk with several people throughout the Town and have come to find out that several requests have been made to see various town expenditures and documentation. It is my understanding that under the Freedom of Information Law, the Town is legally required to provide requested documentation within 30 days or send a letter explaining why the information cannot be released. There have now been several instances where requests have gone completely ignored with no response well beyond the 30 day limit.
Also concerns have been raised as to the Town Council’s open work sessions. Several big issues were raised last year and quickly voted on with little to no deliberation in public. This has led many to question when and if any deliberation took place as many believe any big issue concerning public policy needs to be done in an open work session in which the public is invited to, informed in advance and has an opportunity to speak. Several citizens have written the Town Council about these concerns, all of which have, again, gone unanswered.
For the sake of discussion, does anyone know any specifics about these laws? Specifically, what legal remedy does a citizen have if a freedom of information request goes unanswered and when does the Town Council have the right to conduct business in a closed executive session and when should they have open sessions?
For FOIL: http://takebackny.speakupwny.com/FOIL.html
For Open Meetings Law Violations: http://takebackny.speakupwny.com/OML...t-Example.html
About this time last year I proposed codifying town policies on these topics they are available here: http://www.speakupwny.com/forums/showthread.php?t=17334 and here: http://www.speakupwny.com/forums/showthread.php?t=17333
“We in America do not have government by the majority. We have government by the majority who participate.” ― Thomas Jefferson
Thank you for the information. Did you find any success in these proposals?Originally Posted by dtwarren
I will be bringing them up again. However, for FOIL administrative appeals I believe the Town Board is the appropriate body to address them:
Town board as governing body of municipality and as appeals body for purposes of Freedom of Information Law is required to transmit to committee on Public Access to Records copies of appeals relating to denial of access to records and determinations that follow. Comm Pub Acc Rec FOIL-Ad Op 2597.
Records access officer should not be appeals officer and if appeals officer is not known, appeal should be directed to head or governing body of agency maintaining records sought. Comm on Open Gov't FOIL-AO-4730.
“We in America do not have government by the majority. We have government by the majority who participate.” ― Thomas Jefferson
It should be noted that Public Officers Law § 87(3)(c) was amended effective Jan 2, 2009 to read that each agency shall maintain: "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."
Also as to costs and fees Public Officers Law § 87(1)(c) was amended Effective August 2008 to read that "(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."
Last edited by dtwarren; February 21st, 2009 at 11:33 AM.
“We in America do not have government by the majority. We have government by the majority who participate.” ― Thomas Jefferson
Maybe someone needs to educate the Town Board on the Freedom of Information Law. Here are a few cases from the past few months (taken from Town Board Meeting minutes):
(10/29/08)
Amy Carpenter, Woodward Crescent, stated that she had previously submitted a freedom of information request to the Town Attorney’s office concerning the AmeriCorps and was never given anything. Mr. Lazzara sat with her and told her everything he wanted her to know, but did not provide the information Mr. Russo spoke about. Mrs. Carpenter hoped the information would be made available this time.
Town Attorney Edwin Hunter questioned if Mrs. Carpenter had received any response to her request from Deputy Town Attorney Paul Notaro.
Mrs. Carpenter stated that she had received a response from Mr. Notaro and it would have cost her $365 for photocopy costs. She asked if the information could have been put on a CD but never received a response to that question.
Mr. Hunter questioned when Mrs. Carpenter had requested this information.
Mrs. Carpenter responded that she had asked for this information last year and met last October with Mr. Lazzara.
(10/29/08)
Frank Russo, Parkside Drive, stated that for many years the residents were told that the AmeriCorps program did not cost the taxpayers anything, yet Mr. Greenan just admitted that it cost the town a lot of money. He questioned if anyone had any documentation concerning the grants that was tied to Mr. Lazzara receiving a salary from the town, and if so, why did it have to be $82,000.
Councilwoman Bove stated that she had seen documentation on this but she did not have it with her.
Mr. Russo asked that Councilwoman Bove save him the time of submitting a freedom of information request and just send him the documentation. He thought the public deserved to see documentation that the town was obligated to pay Mr. Lazzara for the next two years. His salary and benefits for the next two years will cost the taxpayers over $200,000 for someone that only does five percent of his work as Youth Director and supervises only two people.
Councilwoman Bove stated that she did not have the documentation to show Mr. Russo and suggested that he submit a freedom of information request.
(1/05/09)
Frank Russo, Parkside Drive, referred to a freedom of information request he had filed concerning Youth Director Mark Lazzara’s salary and benefits that were used as in-kind service for the grant money. Mr. Russo had received a letter from Deputy Town Attorney Paul Notaro stating that he would research this and have a response within 30 days, and he recently received another letter stating that he needs another 30 days. He questioned why it was taking so long to get this information when Councilwoman Bove had previously stated that she saw the documentation.
Mr. Notaro was not present at the meeting and Councilwoman Bove did not have an answer to Mr. Russo’s question.
(12/15/08)
Paula Minklei, Orchard Park Road, stated that on many occasions the residents asked for a list of town jobs, salaries, and benefits, but never received the information. In September 2008, Mrs. Minklei filed a Freedom of Information (FOIL) request for this information and the response she received was a combination of regulations and figures from 2007 and 2008, but not the requested information. She then filed another FOIL request stipulating the 2007 information regarding employee costs and benefits, and received a response from the Deputy Town Attorney stating that he would need a deposit of $632.56 before processing the request. The cost breakdown was explained as $509.74 for record research, $72.82 for record retrieval, and $5 for record copies. Mrs. Minklei did not mind paying for the copies, but she did not understand why research was necessary when this information must have been available since January 2008 to file W2 forms. She also commented that in this day of technology, and given the fact that the town sets aside large amounts in the budget for computer use and maintenance, she could not understand why this information could not be easily accessed. Accessing this information was not a problem for the towns of Orchard Park and Amherst and the information was published on their town websites. It also was not a problem for the City of Buffalo. Mrs. Minklei questioned why this was a problem for West Seneca and stated that the town was lacking in transparency in this regard.
From Town Board Meeting Minutes:
(6/23/08)
Motion by Councilman Graber, seconded by Councilwoman Bove, to amend the motion and enter into a grant administration agreement dated June 23, 2008 between the Town of West Seneca and not-for-profit company WNY AmeriCorps Fund Inc., whereby the not-for-profit agrees to assume the town’s obligation under the grants and authorize Councilwoman Bove to execute the agreement on behalf of the town.
(7/28/08)
Councilwoman Bove stated that Deputy Town Attorney Paul Notaro was working on the agreement with AmeriCorps and she did not know the status of it.
Mrs. Minklei questioned if the agreement would be available for public viewing when it was completed and signed.
Supervisor Piotrowski advised that the agreement was a public record and would be available for the public to review it.
(10/20/08)
Councilwoman Bove stated that she and Comptroller Robert Bielecki and the town’s independent auditor, Wayne Drescher, worked with a number of AmeriCorps not-for-profit people and tried to reconcile the correct accounting for the non-federal program expenses for the years 2004 thru 2007 because this had not been done.
Councilwoman Bove stated that the accountability was all around and in 2008 there will be monthly reports showing paperwork that is submitted for reimbursement of claims so that reconciling at the end of 2008 will be accomplished.
(10/29/08)
Frank Russo, Parkside Drive, stated that for many years the residents were told that the AmeriCorps program did not cost the taxpayers anything, yet Mr. Greenan just admitted that it cost the town a lot of money. He questioned if anyone had any documentation concerning the grants that was tied to Mr. Lazzara receiving a salary from the town, and if so, why did it have to be $82,000.
Councilwoman Bove stated that she had seen documentation on this but she did not have it with her.
_____________________________________
If Councilwoman Bove has been working with Americorps since June 2008, and stated she has seen the documentation Mr. Russo requested… then why is it taking over 60 days to “research” this information?
Public Officers Law § 89(3)(b) provides that: "All entities shall, provided such entity has reasonable means available, accept requests for records submitted in the form of electronic mail and shall respond to such requests by electronic mail, using forms, to the extent practicable, consistent with the form or forms developed by the committee on open government pursuant to subdivision one of this section and provided that the written requests do not seek a response in some other form."
It is clear that the Town has the reasonable means required to accept FOIL requests electronically, but this is not addressed on the Town's website.
“We in America do not have government by the majority. We have government by the majority who participate.” ― Thomas Jefferson
"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."
DTWarren -
"Subdivision four of this section" [referring I believe to Public Officers Law § 87(4), and specifically 87(4)(b)] discusses and defines the term "state agency" as follows:
"As used in this subdivision the term "agency" or "state agency" means only a state department, board, bureau, division, council or office and any public corporation the majority of whose members are appointed by the governor."
As I read it, then, a municipality like West Seneca or Orchard Park would not be required to post its "current subject matter list" on their website or (if a website is not maintained) on the Committee's website.
Do you agree? Thanks.
For those interested, the entire "PUBLIC OFFICERS LAW, ARTICLE 6
SECTIONS 84-90 FREEDOM OF INFORMATION LAW" can be found here: http://www.dos.state.ny.us/COOG/foil2.htm
I agree with your interpretation, however the Town, as all covered entities, must maintain and make available to the public a subject matter list. It would be nothing for them to make this available on their website although not required to do so.
“We in America do not have government by the majority. We have government by the majority who participate.” ― Thomas Jefferson
The process is simple: Contact Bob Freeman (see below) and ask for a formal investigation and opinion. That may put the pressure on the Board. Here's the contact info:
RFreeman@dos.state.ny.us
Robert J. Freeman
Executive Director
NYS Committee on Open Government
41 State Street
Albany, NY 12231
(518) 474-2518 - Phone
(518) 474-1927 - Fax
Website - www.dos.state.ny.us/coog/coogwww.html
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