The silence is deafening

I can tell you from personal experience that getting public records from the Village of Kiryas Joel — a duly incorporated municipality in New York — is an exercise in futility.

I have Freedom of Information Law requests from last year that have gone totally ignored.

Heck, I have some from 15 years ago that I am still waiting for a response (I have stopped holding my breath.)

Here’s the latest chapter in ignoring the law:

Jan. 25, 2008: We send a FOIL request asking for access to building permits issued in 2007, access to the village planning board’s meeting minutes and any code violations issued by the village in 2007.

Feb. 21, 2008: We get an acknowledgement letter, saying the village is working on the request and to give them 20 days.

April 4, 2008: We sent a follow-up letter asking about the status of the FOIL since we’ve gotten no reply and it’s well past the 20 days.

April 23, 2008: We send appeal letter to the KJ municipal offices and to the village’s lawyer, Don Nichols, telling them we consider the request to have been “constructively denied” (read: they are just ignoring us) and therefore we are appealing.

June 13, 2008: Still waiting….

 

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State police memos shed light on approach toward public information

What follows are verbatim transcriptions, courtesy of Times Herald-Record cops reporter Keith Goldberg, of two state police memos concerning the release of public information.

I’ll post them here without comment, other than to highlight one line in the second memo.

Executive Memorandum 2008 EM 08-12 Issued: 3/14/08

Public Information Report

From: William J. Callahan, State Police Administrative Director

To: All Members

Articles 18 and 31 of Members Manual require stations to provide information to public about events occuring in their patrol areas. The Zone Public Information Report is automatically generated for each zone and made available on the Intranet. Generated daily at 9 a.m., it includes all new information entered in SJS in a 24 hour period from 7 a.m. the previous day. The individual Public Information Report will be available on the Intranet for one week and then removed.

Every patrol station will print a single copy of their zone’s Public Information Report and place it in a binder accessible for public review. The binder will contain the current day’s report plus the prior six days. Reports over seven days old will be purged. Supervisors shall review the report for sensitive or confidential information before making it available to the public. Questions regarding this issue can be addressed with Division PIO at 518-457-2180.

The Zone Personal Information Report binder shall be inspected at the appropriate Division installation during business hours, except on Saturday, Sunday and holidays. These inspections shall be subject to the availability of a member to supervise such an inspection; these inspections shall not impede or curtail regular official business functions being conducted at such installation.

Do not disseminate any photocopies of this report. [Emphasis in the original]

Requests for additional information not contained in the Public Information Report will be directed to a supervisor or the Investigating Memeber. Specific questions on what to release should be directed to a supervisor. It is still the responsibility of the Investigating Member to provide the desk with press release information.

It should be noted that the Personal Information Report will not include the following: a) Mental Health Law (MHL) detainments or b) incidents in which no arrest was made but are deemed to involve privacy issues under the Public Officers Law or c) when the agency assigned is designated as a Special Unit or d) names of arrested persons less than 16 years old or e) cases with a “Pending Arrest” status* or f) when the incident category is one of the following: domestic, sex offense, suicide, mental health or unknown. Domestic and sex offense incidents ARE included if an arrest is made.

*Note: A new Incident Status of Pending Arrest is now in SJS. This is to be used only for incidents when an arrest is imminent and the Investigating Member does not want the incident to be included in the next day’s Public Information Report. When the arrest is made, change the incident status to Arrest-Adult and the incident will be included in the next day’s report. This executive memorandum supersedes any prior instruction on media review of SJS incidents.

And then there’s this other memo:

From: F211 Monroe Station Sergeants

To: Fichera, Maryann; Florida Troopers; Monroe Sergeants; Monroe Troopers

Date: 3/14/2008 11:42:28 PM

Subject: New Zone Public Information Report

All:

Division has revised procedures for the PRESS BLOTTER. We will no longer be printing out our typical press blotter. Division has implemented a new report: the Zone Public Information Report. This report is generated by Division each day and is available to be printed after 9 a.m.

The day shift will print his report between 9 a.m. and noon each day utilizing the below procedure. It will be placed in the binder identified as the Troop F-Zone 2-Public Information Report. This report is vague and will prevent unnecessary information from being disseminated to the press and public. [Emphasis here added] It will be the responsibility of the Investigating Member or supervisor to release additional information to the press.

The binder will keep the current day’s report plus the prior six days.

To access the report:

Goto E-Applications

Goto Database

Goto SJS

Goto Case Management

Goto Zone Public Information Report

Goto Troop F, Zone 2

Print the report for the current day of the week after 9 a.m. and before noon

Place report in correct binder

Purge any report older than seven days

BRF

 

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Editorial today on Newburgh’s closed doors

This is an editorial that appeared in the Times Herald-Record today about Newburgh’s mystifying decision to close its doors to the public:

The law opens doors and the city can’t close them

What it is about “meeting” that the Newburgh City Council doesn’t understand?

Recently, Newburgh officials barred some residents from attending a meeting at which a quorum of the council was present along with other city employees. The mayor and the city lawyer defended the decision. The lawyer, using words found nowhere in state law, defined the gathering in City Hall as a “confab, if you will; a discussion; a question session.”

If the law recognized such distinctions, they would be worth noting. But it does not. A quorum of the board for the purpose of conducting public business — such as the discussion about the city master plan, in this case — is a meeting. That is the simple fact of state law. Meetings may be closed for a list of specific reasons, but must start, stay and end in the open.

Council members, city managers, mayors and lawyers don’t get to redefine the law just because they don’t want to talk in public. And in this case, it raises the question, just what did they not want the public to hear?

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Great minds think alike

I got this e-mail the other day:

Hey Chris:
My name is Mark Mahoney and I’m the opinion page editor at The Post-Star up in Glens Falls.

I talked to Bob Freeman today and he told me you were starting an open government blog. I’ve been doing one for about four months now, and I just wanted to email you and wish you good luck. Looks like you’re off to a rousing start already.

If you ever want to share some topics or ideas, let me know.

Take care.

Mark

PS: My blog is also called “Your Right to Know” and it’s on www.poststar.com.

If you go to the Post-Star’s Web site and click under “blogs” you will find Mark’s handiwork, which by the way, is fun, terrific reading. In the interest of full disclosure, I had no idea his blog existed, much less that he had dubbed it “Your Right To Know” — the same thing I call mine.

Well, as far as shining a light on access to public records and government transparency, I say the more the merrier.

BTW, and totally off topic, the Post-Star covers Warren and Washington counties in the foothills of the Adirondacks. It’s pretty country there. You should go and visit.

 

 

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A new head-scratcher…

Either I’m crazy or the good administrators at the Division of State Police are wearing their purple neckties a little too tight.

Here’s the skinny: Back on April 24, I sent a records request (known as a Freedom of Information Law request) to Albany asking for:

“Records that reflect the number of overtime hours recorded and the corresponding amount of overtime pay earned by troopers, investigators, civilians and any commanding officers (if they are eligible) in Troops F, T and K in 2007. The records should reflect the employee’s name, assignment, rank and the number of overtime hours earned and the overtime pay recorded.”

Sounds fairly straightforward, or so I thought.

I finally got a reply from the State Police dated June 3 in which they informed me that my “request fails to reasonably describe the records you seek as required by statute. Records of this agency are not filed or kept with respect to the terms and/or categories set forth in your request.”

I am positively mystified.

“Fails to reasonably describe.”

Fails how? I mean, this was not some thick Faulkner-esque prose that I penned here. How much more clear could I be, short of driving to Albany and pulling the files myself?

I put a call into Capt. Laurie Wagner, who is, in the parlance of FOIL, the “records access officer.” I’ve not heard back from her, so I am left in the dark.

Bob Freeman, the executive director for the state Committee on Open Government, suggested the reply might be interpreted to mean that the state police don’t keep records in the way that I described them.

That is, they might be saying they don’t keep overtime records by the employee’s name, troop assignment, etc. Which, of course, makes no sense either.

So….I’ve appealed the denial, a not-so-subtle copy of which is pasted below. Will keep you posted on how this turns out.

June 9, 2008

Dear Records Appeals Officer:

I am writing to appeal the finding dated June 3, 2008, (copy enclosed) that my Freedom of Information Law request of April 24, 2008, (copy enclosed) failed “to reasonably describe the records … as required by statute.”

As noted in my original request, I am seeking records that reflect the number of overtime hours recorded and the corresponding amount of overtime pay earned by troopers, investigators, civilians and any commanding officers (should they be eligible) for Troops F, T and K for the year 2007.

I went on to note in my original request that I was seeking the data in an electronic format, if possible, citing as possible examples that these records or documents might be kept in the form of monthly time sheets or printouts, biweekly timecards or some other tabulated summary for each member of the division in those troops.

The letter from the Records Access Officer, Capt. Laurie Wagner, is vague about what part of my request fails to describe the records reasonably:

*Is it unclear that I am seeking the overtime hours and pay for the positions described?

*Is it that the records I am seeking are not kept electronically and therefore my request is dismissed out of hand?

*Is that those records are not kept at all? Indeed, the response seems to suggest that the division does not keep track of overtime expenses.

“Records of this agency are not filed or kept with respect to the terms and/or categories set forth in your request.” – June 3, 2008, reply.

It is my position that it is reply of Capt. Wagner that fails to reasonably or adequately explain why these records are being withheld.

If the records are NOT kept electronically, how then are they kept? (I would find it incredible that they are not in some electronic format, for instance, in some spreadsheet program.)

Is it unclear that I want to know how much members of those troops were each paid in overtime and for how many hours in 2007?

My request, as a layman unfamiliar with the inner workings of the division, would seem to reasonably describe the records I am looking for.

In considering that standard of reasonable, the state’s highest court has found that requested records need not be “specifically designated;” that to meet the standard, the terms of a request must be adequate to enable the agency to locate the records, and that an agency must “establish that ‘the descriptions were insufficient for purposes of locating and identifying the documents sought’…before denying a FOIL request for reasons of overbreadth” [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

Is it that the records are not kept at all? This too would be beyond credible.

As a paramilitary organization funded by state tax dollars, I cannot believe such record-keeping does not exist but if the division does not monitor or inventory its overtime spending, please let me know that.

If the records are denied on appeal, please explain the reasons for the denial fully in writing as required by law.

In addition, all appeals and the determinations that follow should be sent to the Committee on Open Government, Department of State, 41 State St., Albany, NY 12231.

Very truly yours,

Chris Mele

Southern Orange County regional editor

Times Herald-Record

cmele@th-record.com

845-783-2764 ext. 6303

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What a head-scratcher

Sometimes you just have to wonder what public officials are thinking.

Case in point: The Newburgh City Council at a meeting this week to discuss revisions to its updated master plan.

As detailed in a story today by reporter Doyle Murphy and available here http://recordonline.com/apps/pbcs.dll/article?AID=/20080606/NEWS/806060372/-1/NEWS the City Council had a quorum of three members and was meeting with staffers to talk about the blueprint that will guide future growth in the city.

OK. Fair enough. But here’s where it gets inexplicable: When two members of the public showed up, they were no sooner there than they were told to leave.

Not open to the public.

So sorry.

Bye-bye.

Huh?

Mayor Nick Valentine contended that the meeting was closed to allow for a more open dialogue between staff and city officials. Having the public there could chill such discussions, he said. But it’s hard to understand what’s so sensitive about the pending master plan that the city felt obliged to keep the discussions secret.

Let’s review: The minimum number of people of a public body that make up a quorum were gathered for purposes of discussing an issue that affects the city’s economic, housing and aesthetic health and will help define neighborhoods for years to come.

Such a gathering constitutes a public meeting, no matter whether you call it a work session, an audit meeting, or as city lawyer Geoff Chanin put it,  “a confab.”

That’s not me talking. That opinion, backed up by the state’s highest court, belongs to the executive director of the state Committee on Open Government, Robert Freeman.

As the state’s guru on the state’s Open Meetings Law, Freeman’s been around long enough to recall that the Times Herald-Record’s parent company sued the City of Newburgh some 30 years ago on these very same grounds.

The state’s Court of Appeals sided with the paper and said the city could not close meetings to the public by calling them something else. That became a landmark ruling that clarified that a public meeting is the gathering of a quorum of a public body for the purpose of conducting public business. More details at the state Committe on Open Government’s Web site: http://www.dos.state.ny.us/coog/coogwww.html

As Freeman observed: “Thirty years have passed. I guess they need a reminder.”

Here’s hoping city leaders consider themselves reminded and open doors that should never have been shut to begin with.

 

 

 

 

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Welcome

Welcome to “Your Right to Know,” a
blog on all things related to access to public information. I hope here to cover
a range of issues — New York’s Freedom of Information and Open Meetings Laws,
the federal Freedom of Information Act, government transparency (or lack
thereof) and whatever related issues you might want to bring to the
conversation.
 
My goal is to educate, engage and enrage you with
the behind-the-scenes struggles to gain access to documents and information that
you, dear citizen and taxpayer, are rightly entitled to. I’ll hail the region’s
records access heros as well as point out some of the records access
zeros.
 
Got something you want to contribute to the
dialogue? Got questions? Better still, got answers? Let me know. Drop a line at
cmele@th-record.com or post your comments
below.

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