Wed 2/13/2019 8:54 AM
cathy macera <maceraXX@live.com>
foil request
Village of Ilion <ilion@ilionny.com>
Dear Records Access Officer:
Please email the following records if possible
All records that are on the agenda for discussion before the Village of Ilion Board of Trustees, of February 13 2019 meeting. This shall include but not be limited to: all reports, all public appearance documents, proposed resolutions, law, rules, regulations, policies or amendments thereto.
As you see I have offer plenty of , well documented trustworthy sources, the public has a right to requested documents and records.
Ms. Macera:
As you may be aware, the Open Meetings Law was amended several years ago to deal with the kind of issue to which you referred. Many complained that they attended meetings but could not follow the discussion by the board without the documentation in possession of board members. That resulted in a recommendation offered by this office several years in succession until legislation was finally passed in 2011 and effective in February, 2012. That provision, section 103(e) of the Open Meetings Law, pertains to records scheduled to be discussed during an open meeting.
When a record scheduled to be discussed during an open meeting, and the record is available under the Freedom of Information Law or consists of a “proposed resolution, law, rule regulations, policy or any amendment thereto”, it must be made available “to the extent practicable” on request prior to or at the meeting during which the record will be discussed. Further, when an agency maintains a website, “such records shall be posted on the website to the extent practicable…prior to the meeting.”
In an effort to encourage better compliance with law, a copy of this response is being sent to Ms. Penny, Village Clerk.
I hope that I have been of assistance.
Bob Freeman
As this would also place the clerk and the trustees in compliance with the Village of Ilion as well in compliance with :
Rules of Procedure for Village Board Meetings
Section 4 - Agendas
The Village Clerk at the direction of the Mayor shall prepare agendas for Village Board meetings. Items for inclusion, when possible, shall be to the Clerk at least 24 hours before the meeting. Draft copies of the agenda shall be circulated to the members of the board by the close of business on Tuesday or the day before the meeting. The agenda shall be posted on the Village’s website at least 24 hours before the meeting. Items may be added to the final agenda at the beginning of the Village Board meeting.
§103(e) to the Open Meetings Law, effective February 2012
OML-AO-5324
“Based on complaints such as these, the Legislature added §103(e) to the Open Meetings Law, effective February 2012.The purpose of the legislation is simple: those interested in the work of public bodies should have the ability, within reasonable limitations, to see the records scheduled to be discussed during open meetings prior to the meetings and concurrently with the public discussion involving those records.
The amendment addresses two types of records: first, those that are required to be made available pursuant to FOIL; and second, proposed resolutions, law, rules, regulations, policies or amendments thereto. When either is scheduled to be discussed during an open meeting, the law requires that copies of records must be made available to the public prior to or at the meeting, upon request upon payment of a reasonable fee, and, when practicable, online prior to the meeting. The amendment authorizes an agency to determine when and what may be “practicable” in making records available.
It is important to stress that the amendment involves an effort to take advantage of today’s information technology to promote transparency and citizens’ participation in government, and to reduce waste. If the agency in which a public body functions (i.e., a state department, a county, city, town, village or school district) “maintains a regularly and routinely updated website and utilizes a high speed internet connection,” the records described above that are scheduled to be discussed in public “shall be posted on the website to the extent practicable as determined by the agency…”.It is not incumbent upon the public to make a request that such records be posted online, it is the agency’s responsibility to do so.”
CM Macera
Wed 2/13/2019 12:30 PM
cathy macera <maceraxx@live.com>
FREEDOM OF INFORMATION LAW APPEAL ATTN VILLAGE BOARD
Village of Ilion <ilion@ilionny.com>
roselawlittlefalls@gmail.com
Re: Freedom of Information Law Appeal
2/13/2019 pg. 1
According to Village of Ilion Codes:
ARTICLE I
Public Access Adopted 10-8-1974 by resolution]
181-1. Statutory authority.
The Board of Trustees of the Village of Ilion, New York, hereby promulgates this set of rules in accordance with Chapter 578 of the Laws of 1974.1
1 Editor's Note: See Article 6 of the] Public Officers law, the Freedom of Information Law
181-8. Access denials. In the event that any person is denied access to any public records in violation of the law, that person shall advise the Board of Trustees of such denial, in writing, and set forth the records requested, the reason for denial and the fact that the fees for such records were, in fact, tendered.
I hereby, in compliance with the above Village of Ilion Article I sections 181-1 and 181-8 , hereby appeal the denial of access regarding my request, which was made on January 17, 2019 and sent to ilion@ilionny.com on Jan. 17, 2019. At 7:15:11 AM. On Jan. 17, 2019 at 11:49:27 AM, I received from Wendy Penny, acknowledgment of FOIL REQUEST of same date.
On Friday 1/18/20191:18 PM FOIL request January 7, 2019, WENDPENNYwpenny@ilionny.com cc Marijo Thompson <marijo@ilionny.com, Susan Hale <sue@ilionny.com>
Despite the written statement contained in the email,
Dear Catherine Macera:
Attached please find the results of your January 7, 2019 FOIL request. I trust this is all of the information you are seeking. I hope you have a very pleasant weekend. Best Wendy S. Penny Village Clerk 49 Morgan St Ilion, NY 13357 Phone: 315-895-7449 x 3069 Fax: 315-895-7361 Cell: 315-520-9744
Ms Penny offered no response in truth to the 1/7/2019 request sent on such at 8:47 AM to which a truthful response was received on 1/10/2019 11:39 AM cc Brian Lamica, Marijo Thomspson, Susan Hale.
Statement of truth Ms. Penny offered response to 1/17/2019. Of which she failed to acknowledge, nor offer any denial reason for refusing to provide:
All documents for the agenda for Village board meeting of December 12, 2018 and January 2019, this shall include but not limited to all department reports, all audits whether internal or external, communications regarding public business whether sent or received, that was discussed, all proposals and/or bids to perform work of any public projects
Pg. 2
Once used at Board meeting, Agenda documents are now part of the Village Board minutes but are also records prepared by the Village.
Although Village Board minutes are provided on the Village Website, they fail to include the documents that were prepared for and used for discussion and decisions. They are accessible to the Public, as we can clearly and openly observe:
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.
I once again request the following:
All documents for the agenda for Village board meeting of December 12, 2018 and January 2019, this shall include but not limited to all department reports, all audits whether internal or external, communications regarding public business whether sent or received, that was discussed, all proposals and/or bids to perform work of any public projects.
Although, the actual date of January is not stated, at the true date of request only one Meeting had been held, January 9, 2019, just a pinch of common sense would lead to that conclusion.
I offer the following Committee of Open Government Opinions in furtherance, several opinions, over the years, since your adapt policy of 1974, remain truth of the importance of Open Government.
FOIL AO- 19236
First and perhaps most importantly, §86(4) of the Freedom of Information Law defines the term “record” expansively to include:
“any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions. folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes.”
The Court of Appeals has construed the definition as broadly as its specific language suggests. The first such decision that dealt squarely with the scope of the term “record” involved documents pertaining to a lottery sponsored by a fire department. Although the agency contended that the documents did not pertain to the performance of its official duties, i.e., fighting fires, but rather to a “nongovernmental” activity, the Court rejected the claim of a “governmental versus nongovernmental dichotomy” [see Westchester Rockland
Pg.3
Newspapers v. Kimball, 50 NY 2d 575, 581 (1980)] and found that the documents constituted “records” subject to rights of access granted by the Law. Moreover, the Court determined that:
“The statutory definition of ‘record’ makes nothing turn on the purpose for which it relates. This conclusion accords with the spirit as well as the letter of the statute. For not only are the expanding boundaries of governmental activity increasingly difficult to draw, but in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same person or persons” (id.).
FOIL AO- 19195
We further note that §86(4) of the Freedom of Information Law defines the term “record” expansively to include:
“any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions. folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes.”
The Court of Appeals has construed the definition as broadly as its specific language suggests. The first such decision that dealt squarely with the scope of the term “record” involved documents pertaining to a lottery sponsored by a fire department. Although the agency contended that the documents did not pertain to the performance of its official duties, i.e., fighting fires, but rather to a “nongovernmental” activity, the Court rejected the claim of a “governmental versus nongovernmental dichotomy” (see Westchester Rockland Newspapers, supra) and found that the documents constituted “records” subject to rights of access granted by the Law. Moreover, the Court determined that:
“The statutory definition of ‘record’ makes nothing turn on the purpose for which it relates. This conclusion accords with the spirit as well as the letter of the statute. For not only are the expanding boundaries of governmental activity increasingly difficult to draw, but in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same person or persons” (id.).
FOIL AO- 18936
In this regard, we note that §86(4) of the Freedom of Information Law defines the term “record” expansively to include:
“any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions. folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes.”
The Court of Appeals has construed the definition as broadly as its specific language suggests. The first such decision that dealt squarely with the scope of the term “record” involved documents pertaining to a lottery sponsored by a fire department. Although the agency contended that the documents did not pertain to the performance of its official duties, i.e., fighting fires, but rather to a “nongovernmental” activity, the Court rejected the claim of a “governmental versus nongovernmental dichotomy” [see Westchester Rockland Newspapers v. Kimball, 50 NY 2d 575, 581 (1980)] and found that the documents constituted “records” subject to rights of access granted by the Law. Moreover, the Court determined that:
p.4
“The statutory definition of ‘record’ makes nothing turn on the purpose for which it relates. This conclusion accords with the spirit as well as the letter of the statute. For not only are the expanding boundaries of governmental activity increasingly difficult to draw, but in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same person or persons” (id.).
In a decision involving records prepared by corporate boards furnished voluntarily to a state agency, the Court of Appeals reversed a finding that the documents were not “records,” thereby rejecting a claim that the documents “were the private property of the intervenors, voluntarily put in the respondents’ ‘custody’ for convenience under a promise of confidentiality” [Washington Post v. Insurance Department, 61 NY 2d 557, 564 (1984)]. Once again, the Court relied upon the definition of “record” and reiterated that the purpose for which a document was prepared or the function to which it relates are irrelevant. Moreover, the decision indicated that “When the plain language of the statute is precise and unambiguous, it is determinative” (id. at 565).
FOIL AO – 180377
The difference between a recording generated by a town board member, and records regarding a lawsuit brought by a town board member lies in the definition of “records” in the Freedom of Information Law. Section 86(4) of that statute defines the term “record” expansively to include:
"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."
The Court of Appeals, the State's highest court, has construed the definition as broadly as its specific language suggests. The first such decision that dealt squarely with the scope of the term "record" involved documents pertaining to a lottery sponsored by a fire department. Although the agency contended that the documents did not pertain to the performance of its official duties, i.e., fighting fires, but rather to a "nongovernmental" activity, the Court rejected the claim of a governmental versus nongovernmental dichotomy" [see Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581 (1980)] and found that the documents constituted "records" subject to rights of access granted by
the Law. Moreover, the Court determined that:
"The statutory definition of 'record' makes nothing turn on the purpose for which it relates. This conclusion accords with the spirit as well as the letter of the statute. For not only are the expanding boundaries of governmental activity increasingly difficult to draw, but in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same person or persons" (id.).
In another decision rendered by the Court of Appeals, the Court focused on an agency claim that it could "engage in unilateral prescreening of those documents which it deems to be outside of the scope of FOIL" and found that such activity "would be inconsistent with the process set forth in the statute" [Capital Newspapers v. Whalen, 69 NY 2d 246, 253 (1987)]. The Court determined that:
Pg. 5
"...the procedure permitting an unreviewable prescreening of documents - which respondents urge us to engraft on the statute - could be used by an uncooperative and obdurate public official or agency to block an entirely legitimate request. There would be no way to prevent a custodian of records from removing a public record from FOIL's reach by simply labeling it 'purely private.' Such a construction, which would thwart the entire objective of FOIL by creating an easy means of avoiding compliance, should be rejected" (id., 254).
Further, in a case involving notes taken by the Secretary to the Board of Regents that he characterized as "personal" in conjunction with a contention that he took notes in part "as a private person making
personal notes of observations...in the course of" meetings. In that decision, the court cited the definition of "record" and determined that the notes did not consist of personal property but rather were records subject to rights conferred by the Freedom of Information Law [Warder v. Board of Regents, 410 NYS 2d 742, 743 (1978)].
As I previously indicated and restate now in the positive, it is my opinion that if the two town board members had the authority of the Town to sue the Town, records generated with respect to the Town’s payment for such representation would be records “produced… for an agency”, i.e., produced for the Town, and therefore subject to the Freedom of Information Law. Without more, it is not determinative, in my opinion, that the caption of a lawsuit indicated that the petitioners were “acting
in their official capacity.”
A recording made by a board member during the course of a public meeting is different than records related to such a lawsuit, because it is made by a public official during the course of a public meeting in which she is a participating in the course of her official duties, and it pertains to the business of the Town. Similarly, it is my opinion that notes made by a public official during a public meeting are “records”, subject to the Law.
Records of payments made by a person to an attorney that are not subject to the Freedom of Information Law would be available, I believe, through formal legal processes, including subpoenas, court orders, and perhaps what is known as “discovery” in the litigation context.
As previously advised, any and all records of payments made by the Town to an attorney would be “records” subject to the Freedom of Information Law. Further analysis regarding access to such records can be found in our online FOIL advisory opinions regarding “Attorney, compensation of”.
As required by the Freedom of Information Law, the head or governing body of an agency, or whomever is designated to determine appeals, is required to respond within 10 business days of the receipt of an appeal. If the records are denied on appeal, please explain the reasons for the denial fully in writing as required by law.
In addition, please be advised that the Freedom of Information Law directs that all appeals and the determinations that follow be sent to the Committee on Open Government, Department of State, One Commerce Plaza, 99 Washington Ave., Albany, New York 12231.
CM Macera
Fri 2/22/2019 1:09 PM
cathy macera <maceraxx@live.com>
FOIL REQUEST
Village of Ilion <ilion@ilionny.com>
Dear Records Access Officer:
Please email the following records if possible:
Village of Ilion Budgets for the following years
2009, 2010, 2011, 2012 and 2013
Village of Ilion MUB meeting minutes of the following years:
2007 through 2017
Audit of Jeff Rowland concerning overtime payments, as discussed in VB meeting of December 12, 2018, since you continue to exclude that from all previous request of Agenda documents
In support of request, although I am under no legal obligation to do so, I offer the following to avoid the continual habit of delays of exclusions of documents without justifying the denial, I have highlighted the pertinent portion:
FOIL-AO-17865
October 28, 2009
TO:
FROM: Robert J. Freeman, Executive Director
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.
Dear
I have received your letter in which you asked that I explain “why the figures in an audit of the Southampton Town’s capital budget should be available.” Although the audit was prepared by an outside auditing firm, the Town has contended that it falls within the scope of the attorney-client privilege and may be withheld on that basis. You added that the Town has indicated that “any analysis should be withheld as it could be used in a court case.”
In this regard, I offer the following comments.
First, as a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (j) of the Law.
Second, one of the exceptions to rights of access, §87(2)(g), often requires disclosure, and I believe that to be so in this instance. That provision permits an agency, such as a town, to withhold records that:
"are inter-agency or intra-agency materials which are not:
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..."
It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.
In the context of your inquiry, two of the provisions requiring disclosure are pertinent. Pursuant to subparagraph (i), those portions of the record or records at issue that consist of statistical or factual information, i.e., the figures to which you referred, are accessible, and based on subparagraph (iv), external audits must also be made available.
Third, when the attorney-client privilege is properly and justifiably asserted, records falling within the scope of the privilege are confidential and may be withheld under §87(2)(a) of the Freedom of Information Law concerning records that “are specifically exempted from disclosure by statute.” However, an the auditor is not an attorney, and he/she or the firm that prepared the audit does not carry out functions based uniquely on the knowledge or skills of attorneys. That being so, I do not believe that the attorney-client privilege may be asserted.
In a discussion of the parameters of the attorney-client relationship and the conditions precedent to its initiation, it has been held that:
"In general, 'the privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client'" [People v. Belge, 59 AD 2d 307, 399 NYS 2d 539, 540 (1977)].
In short, based on judicial precedent, again, I do not believe that the records at issue fall within the scope of the attorney-client privilege.
Related to the privilege are provisions in Civil Practice Law and Rules concerning discovery in a litigation context. Section 3101(c) generally exempts the work product of an attorney from disclosure, and §3101(d) exempts material prepared for litigation from disclosure. Both of those provisions are intended to shield from an adversary records that would result in a strategic advantage or disadvantage, as the case may be. In a decision in which it was determined that records could justifiably be withheld as attorney work product, the "disputed documents" were "clearly work product documents which contain the opinions, reflections and thought process of partners and associates" of a law firm "which have not been communicated or shown to individuals outside of that law firm" [Estate of Johnson, 538 NYS 2d 173 (1989)]. In another decision, the relationship between the attorney-privilege and the ability to withhold the work product of an attorney was discussed, and it was found that:
"The attorney-client privilege requires some showing that the subject information was disclosed in a confidential communication to an attorney for the purpose of obtaining legal advice (Matter of Priest v. Hennessy, 51 N.Y.2d 62, 68-69, 431 N.Y.S.2d 511, 409 N.E.2d 983). The work-product privilege requires an attorney affidavit showing that the information was generated by an attorney for the purpose of litigation (see, Warren v. New York City Tr. Auth., 34 A.D.2d 749, 310 N.Y.S.2d 277). The burden of satisfying each element of the privilege falls on the party asserting it (Priest v. Hennessy, supra, 51 N.Y.2d at 69, 431 N.Y.S. 2d 511, 409 N.E.2d 983), and conclusory assertions will not suffice (Witt v. Triangle Steel Prods. Corp., 103 A.D.2d 742, 477 N.Y.S.2d 210)" [Coastal Oil New York, Inc. v. Peck, [184 AD 2d 241 (1992)].
In my view, it is clear that an audit and related materials cannot be characterized as the work product of an attorney or otherwise considered privileged.
Further, it is emphasized that it has been determined judicially that if records are prepared for multiple purposes, one of which includes eventual use in litigation, §3101(d) does not serve as a basis for withholding records; only when records are prepared solely for litigation can §3101(d) be properly asserted to deny access to records [see e.g., Westchester-Rockland Newspapers v. Mosczydlowski, 58 AD 2d 234 (1977)].
Lastly, as specified by the state’s highest court, the Court of Appeals, in a case involving a request made under the Freedom of Information Law by a person involved in litigation against an agency: "Access to records of a government agency under the Freedom of Information Law (FOIL) (Public Officers Law, Article 6) is not affected by the fact that there is pending or potential litigation between the person making the request and the agency" [Farbman v. NYC Health and Hospitals Corporation, 62 NY 2d 75, 78 (1984)]. Similarly, in an earlier decision, the Court of Appeals determined that "the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and is neither enhanced...nor restricted...because he is also a litigant or potential litigant" [Matter of John P. v. Whalen, 54 NY 2d 89, 99 (1980)]. The Court in Farbman, supra, discussed the distinction between the use of the Freedom of Information Law as opposed to the use of discovery in Article 31 of the Civil Practice Law and Rules (CPLR). Specifically, it was found that:
"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on governmental decision-making, its ambit is not confined to records actually used in the decision-making process (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request (Farbman, supra, at 80).
In an effort to enhance understanding of and compliance with the Freedom of Information Law, a copy of this opinion will be sent to the Town Board.
I hope that I have been of assistance.
RJF:jm
cc: Town Board
Please Certify that copies/records/documents are true copies
If all of the requested records cannot be emailed to me, please inform me by email of the portions that can be emailed and advise me of the cost for reproducing the remainder of the records requested ($0.25 per page or actual cost of reproduction)..
If my request is too broad or does not reasonably describe the records, please contact me via email so that I may clarify my request, and when appropriate inform me of the manner in which records are filed, retrieved or generated.
If for any reason any portion of my request is denied, please inform me of the reasons for the denial in writing and provide the name, address and email address of the person or body to whom an appeal should be directed.
CM Macera
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