Mon 3/4/2019 8:25 AM
cathy macera <maceraxx@live.com>
FOIL APPEAL
Village of Ilion <ilion@ilionny.com>
NOTE*** An appeal is not the responsibility of a mere clerk, it is under Law the Duty of the Board of Trustees, as well as Village of Ilion Code.
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.
21 NYCRR 1401.7 Denial of access to records.
(a) The governing body of a public corporation or the head, chief executive or governing body of other agencies shall determine appeals or shall designate a person or body to hear appeals regarding denial of access to records under the Freedom of Information Law.
Village of Ilion Board of Trustees
Appeals Officers: Schoonmaker, McKinley, Moore, Lester Lamica
RE: FREEDOM OF INFORMMATION APPEAL
I hereby appeal the denial of access regarding my request, which was made on January 15. 2019 and sent to Village of Ilion Clerk, Wendy Penny.
The records that were denied include:
1) All Zoning Board of Appeals Minutes from January 1st, 2018 through January 15, 2019. Which shall include but not limited to all documents provided at hearings, Legal notices, fees charged AND all correspondence from the ZBA regarding decision made and any Stipulation demanded by the ZBA.
2) All permits. both Commercial and Residential issued by Codes Enforcer Officer from January 1st, 2018 through January 15, 2019 Which shall include but not limited building permits, demolition permits, as well as all documents legally required of each type of permit such as : drawings, engineering renderings, all photos, surveys, etc.
Reason for denial: no offered
Clerk response:
“Attached you will find responses to your January 15, 2019 FOIL Request. Please be advised drawings, engineering documents, photos, surveys and maps would require you to come into the office to view, as they are too large to scan.
Available hours are Monday -Friday 10am -2pm, 49 Morgan Street, Ilion, NY. I certify all records and documents are true copies, to the best , but not limited to my knowledge.”
1) The clerk belies the Village of Codes requirements as follows:
file:///C:/Users/macer/Desktop/APPEAL21920191152019/building_permits.pdf
attached to the permit is a relatively blank sheet (8x11) with a mere border outline.
And clearly states: A Stamped Architect/Engineer prints MAY be required prior to permit approval.
The Record Access Officer, Village Clerk Wendy Penny, failed to prov Attached you will find responses to your January 15, 2019 FOIL Request. Please be advised drawings, engineering documents, photos, surveys and maps would require you to come into the office to view, as they are too large to scan. Available hours are Monday -Friday 10am -2pm, 49 Morgan Street, Ilion, NY. ided written documentation that any larger then to scale or any required Stamped Architect/Engineer print was requested.
2) file:///C:/Users/macer/Desktop/APPEAL21920191152019/zoning_application_change_5.30.12.pdf
There shall be submitted with all applications for building permits two (2) copies of a layout or plot plan, drawn to scale, showing the actual dimensions of the lot to be built upon, the exact size and location on the lot of the building and accessory building to be erected and such other information as may be necessary to determine and provide for the enforcement of this chapter.
250-31. Abandonment.
Whenever a nonconforming use has been discontinued for a period of one (1) year, such use shall not hereafter be reestablished, and any future use shall be in conformity with the provisions of this chapter.
Any Variance had to been issued within the last year, to be able obtain an permit.
December 12. 2018 minutes
“Paul Bulinksi – Storage Units: Mr. Bulinski addressed the Board with concerns of the high fee he had to pay for the building permit for the new storage units he is getting ready to put up on East Clark Street. Mr. Bulinski requested from the Board a discount on the permit because he didn’t budget for such a large fee. PMO Carter stated that all business building permits are .40 per square foot. Deputy Mayor Lester feels that the cost is extremely high and asked if PMO Carter can research other Villages to see what they are charging per square foot for new constructions. Mayor Lamica told Mr. Bulinski that PMO Carter will research and then discuss with the Board his finding and then get back to him with a decision on the fee. “
January 9, 2019 minutes
“Paul Bulinski—Mr. Bulinski was inquiring about the pricing of square footage when obtaining a building permit. Property Maintenance Officer Timothy Carter said he was currently looking into the matter. Mr. Bulinski then presented documents of his building permit, variance permit, and a copy of his latest survey of property at 38 Catherine St, Ilion. The building in question is currently approximately two feet into his land. Deputy Mayor Charles Lester expressed his dissatisfaction with the lack of information on the current building permit issued by Property Maintenance Officer Timothy Carter. Mayor Lamica offered a future meeting with Mr. Bulinski to discuss the matter further. No date for said meeting has been scheduled yet.”
Provide the original requested documents.
2) All permits. both Commercial and Residential issued by Codes Enforcer Officer from January 1st, 2018 through January 15, 2019 Which shall include but not limited building permits, demolition permits, as well as all documents legally required of each type of permit such as : drawings, engineering renderings, all photos, surveys, etc.
The original request was for ALL PERMITS, I did not request a list.
Provide ALL permits as originally requested
Clerks demand of REPSONSE OF 1/31/2019 is a direct Violation 21 NYCRR 1401.1:
Attached you will find responses to your January 15, 2019 FOIL Request. Please be advised drawings, engineering documents, photos, surveys and maps would require you to come into the office to view, as they are too large to scan. Available hours are Monday -Friday 10am -2pm, 49 Morgan Street, Ilion, NY.
21 NYCRR PART 1401.4 Hours for public inspection.
(a) Each agency shall accept requests for public access to records and produce records during all hours they are regularly open for business
I have proven that you lack any standing for denial, that the Village itself has not requested FULL SCALE, the clerk, continues to violate FOIL and constitutional rights.
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.
Sincerely,
CM Macera
Mon 3/11/2019 10:07 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
Building Permit issued for the Demolition of 161 Otsego St, Ilion
Village Boards Minutes, including all documents of agenda from:
Year of 2007
Year of 2011
All resolutions for the following years
2011, 2012, 2013, 2019
Provide all minutes and agenda documents of the following
MUB and Planning Commission
1/1/2018 to present date of 3/11/2019.
Please all certify all records to be true copies.
Please advise me of the appropriate time during normal business hours for inspecting the following records prior to obtaining 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 the requested records cannot be emailed to me due to the volume of records identified in response to my request, please advise me of the actual cost of copying all records onto a CD or floppy disk.
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
Fri 3/15/2019 10:15 AM
cathy macera <maceraxx@live.com>
FOIL APPEAL
Village of Ilion <ilion@ilionny.com>
NOTE*** An appeal is not the responsibility of a mere clerk, it is under Law the Duty of the Board of Trustees, as well as Village of Ilion Code.
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.
21 NYCRR 1401.7 Denial of access to records.
(a) The governing body of a public corporation or the head, chief executive or governing body of other agencies shall determine appeals or shall designate a person or body to hear appeals regarding denial of access to records under the Freedom of Information Law.
Village of Ilion Board of Trustees
Appeals Officers: Schoonmaker, McKinley, Moore, Lester Lamica
RE: FREEDOM OF INFORMMATION APPEAL
I hereby appeal the denial of access regarding my request, which was made on January 31. 2019 6:12 AM and sent to Village of Ilion Clerk, Wendy Penny at ilion@ilionny.com as provided:
Dear Records Access Officer:
Please email the following records if possible
Resignation letter of Robert Zutter as it was part of the Agenda discussions of 7/11/2018
Traffic Commission members list and all Meeting Minutes of Traffic Commission for 2018.
All Agenda documentation for VB meeting of 7/28/2018, this will include but not limited to all resolutions, all records pertaining to the financial expenditure budget changes and contractual changes made for financial expenditures for all part-time employees, and a copy of all part-time employees contracts containing changes.
All written communications regarding Dufold, from 2014 - present date of 1/30/19
This shall include both sent and received documents/records from any Board member, department head, or attorney
Offered in assistance to prevent any delays or denial h ttps://docs.dos.ny.gov/coog/ftext/19562.htm
“Second, it is true that the Freedom of Information Law (FOIL) does not require that agency staff or officials provide information in response to questions, offer explanations concerning its actions or activities, or create new records in responding to requests. However, FOIL is expansive in its scope, for it pertains to all agency records, and as you are aware, a school district is an agency [see FOIL, §86(3)]. Perhaps of significance in the context of the material sought is the term “record.” Section 86(4) of FOIL defines “record” to mean “any information kept, held, filed, produced or reproduced by, with or for an agency….in any physical form whatsoever…”
In consideration of the application of FOIL not only to records in the physical possession of District officials, but also to those that may be kept or may have been prepared for the District, it is suggested that you renew your request and emphasize that it includes records kept or prepared for the District by its counsel.
Third, insofar as records are maintained by or for an agency, FOIL is based on a presumption of access and requires disclosure, except to the extent that a ground for denial of rights of access appearing in §87(2) of that statute may properly be asserted.
If there are written communications between the District’s counsel and the developer or the developer’s representative, I do not believe that any exception could validly be cited to deny access. There would be no privilege, for the client of the District’s counsel is the District; the privilege would not extend to communications to or from the developer. A provision that is often relevant in a negotiation process, §87(2)(c), authorizes an agency to withhold records insofar as disclosure “would impair present or imminent contract awards…” Since the matter has been resolved and a settlement reached, that exception is no longer pertinent. Again, if records such as those referenced here exist, they must, in my opinion, be made available.”
Please Certify that copies/records/documents are true copies
If the requested records cannot be emailed to me due to the volume ofrecords identified in response to my request, please advise me of the actual cost of copying all records onto a CD or floppy disk.
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
The records that were denied include:
All written communications regarding Duofold, from 2014 - present date of 1/30/19
This shall include both sent and received documents/records from any Board member, department head, or attorney
Reason for denial
I will need specific dates/specific documents you wish to see.
I believe I need not supply such specific details as the Clerk claims. I gave a variety of ways, to research, as nowhere on the Village Website is there any category list of records kept, or how the Village Clerk Files.
Perhaps consulting with Village Attorney, perhaps his secretary is much more proficient at electronic filling, proper categories etc.
I gave a very specific subject matter DUOFOLD, specific time frame 2014-1/30/19 and specific offering of emails, specific types of email SENT AND RECEIVED and TO WHOM AND FROM.
Ilion is a mere Village, 5 board members, half dozen depart. Heads and the same attorney for the year -to- date, save a few months in 2014.
I believe that the Village Clerk, would be familiar with who the Board members (even past), who the Village attorney is, after all it is on the official letter head. And department heads the clerk should know, for she must request their records when complying with FOIL, despite the VIL 4-402 of NY, :
The clerk of each village shall, subject to the direction and control of the mayor:
a. have custody of the corporate seal, books, records, and papers of the village and all the official reports and communications of the board of trustees;
b. act as clerk of the board of trustees and of each board of village officers and shall keep a record of their proceedings;
c. keep a record of all village resolutions and local laws;
e. shall, during office hours as prescribed by the board of trustees, on demand of any person, produce for inspection the books, records and papers of his office, and shall furnish a copy of any portion thereof,
According to Committee on opinion FOIL-AO-18949
August 20, 2012
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
Dear:
This is in response to your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the Pelham Unified Free School District. In February 2012 you asked for “any and all” email communications between Martin Brooks and Dr. Dennis Lauro. Dr. Lauro is the District’s appeals officer, with whom you have corresponded regarding your appeals. You indicated that you were initially provided with only one series of emails, but subsequent to a second appeal to Dr. Lauro, you were provided with nearly 200 pages of records and informed that there were possibly 3,000 more responsive records that the District would not review.
In this regard, we note that first, based on the language of the law and its judicial construction, a request made for a specific document or documents, or in the example that you raise, any and all correspondence beyond that of email, does not necessarily indicate that a person seeking the record has made a valid request that must be honored by an agency. In considering the requirement that records be “reasonably described”, the Court of Appeals has held that whether or the extent to which a request meets the standard may be dependent on the nature of an agency’s filing, indexing or records retrieval mechanisms [see Konigsburg v. Coughlin, 68 NY2d 245 (1986)]. When an agency has the ability to locate and identify records sought in conjunction with its filing, indexing and retrieval mechanisms, it was found that a request meets the requirement of reasonably describing the records, irrespective of the volume of the request. By stating, however, that an agency is not required to follow “a path not already trodden” (id., 250) in its attempts to locate records, we believe that the Court determined, in essence, that agency officials are not required to search through the haystack for a needle, even if they know or surmise that the needle may be there. In short, agency staff are not required to engage in herculean or unreasonable efforts in locating records to accommodate a person seeking records.
Based on the foregoing, since great numbers of records maintained electronically can be searched without undue effort, the question is what is required when the search identifies approximately 3,000 records, and whether the Freedom of Information Law imposes a responsibility on the agency to review all of them. Due to advances in information technology, the District has the ability to locate, identify and retrieve those communications with reasonable effort, and is apparently able to locate and retrieve thousands of email communications through the use of certain search terms.
The content of such records differs in each such communication. Some communications may include references to individuals, and it is possible that some aspects of those records may be redacted on the ground that disclosure would constitute “an unwarranted invasion of personal privacy” in accordance with sections 87(2)(b) and 89(2)(b) of FOIL. It may be that some reference individual students, in which case the District would be prohibited from releasing personally identifiable information. Virtually all of the communications would constitute “intra-agency material” falling within the scope of section 87(2)(g). Under that provision, some aspects of those communications may be withheld, but others must be disclosed.
The point is that, to give effect to FOIL, and to respond to a request that identifies thousands of email communications, each email must be read and reviewed individually in order determine rights of access. The time and effort needed to do so is more than substantial. Nevertheless, based on the standard prescribed by Konigsberg, a court might determine that an agency is required to engage in an effort of that magnitude.
Your offer to receive all 3,000 emails and sort through them yourself highlights how, with modern electronic search capability, it is possible that similar requests could involve the content of a “virtual” file cabinet. This request brings to mind an opinion rendered several years ago involving a request for all records contained in several file cabinets located in or near the office of a certain agency employee. It was advised in that situation that the request did not reasonably describe the records, and that the guidance offered in Fisher & Fisher v. Davison (Supreme Court, New York County, September 27, 1988) was applicable. The court referred to and rejected a voluminous request, finding that:
“Petitioner’s actual demand transcends a normal or routine request by a taxpayer. It…bring[s] in its wake an enormous administrative burden that would interfere with the day-to-day operations of an already heavily burdened bureaucracy.”
Similarly, inquiries have been directed to this office concerning requests for all email communications transmitted or received by a particular government officer or employee over a period of several years, without regard to subject matter or content. In the case of many officers or employees, there would be thousands of email communications involving scores of topics. Review of those communications to ascertain rights of access would, in the words of the decision cited above, “transcend a normal…request…”
In consideration of the realities associated with the potential of information technology and the ability to search for, locate and retrieve many thousands of records, we believe that the standard in FOIL, reasonably describing records sought in accordance with the guidance offered by the Court of Appeals in 1986, is outdated and merits modification.
From our perspective, every law must be implemented in a manner that gives reasonable effect to its intent, and we point out that in its statement of legislative intent, §84 of the Freedom of Information Law states that "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible."
Accordingly, until and unless the Law is amended to focus on the reality that the high volume of material that can be located with reasonable effort through electronic means, it is our opinion that it is unreasonable to require an agency to review thousands of records that may contain a particular search term or termterms in response to a Freedom of Information Law request. As is the case here, it would be an unreasonable burden, in our view, to require an agency to review perhaps thousands of individual records in order to identify those portions of such records that are required to be made available.
Therefore, while you could initiate a judicial proceeding, it may be more efficient to narrow the scope of your request.
With respect to your request that a search be conducted for paper records that contain the identified terms, we rely on the Court’s ruling in Konigsberg, discussed earlier, in support of our opinion that the agency has a responsibility to locate records based on the indexing system in place at the time of the request. If the agency is able to locate the requested records with reasonable effort, it is required to do so; however, nothing in the Law would require the agency to search every paper record in its custody to locate those that contain certain terms.
With respect to your questions regarding certification, when an agency indicates that it does not maintain or cannot locate a record, an applicant for the record may seek a certification to that effect. Section 89(3) of the Freedom of Information Law provides in part that, in such a situation, on request, an agency “shall certify that it does not have possession of such record or that such record cannot be found after diligent search.” It is emphasized that when a certification is requested, an agency “shall” prepare the certification; it is obliged to do so.
Finally, with respect to the amount of time permitted to respond to an appeal, we reference §89(4)(b), which states that a failure to determine an appeal within ten business days of the receipt of an appeal constitutes a denial of the appeal. In that circumstance, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules.
We hope that this is helpful.
CSJ:sb
Received on February 8, 2019
Dear Catherine Macera:
Attached please find results of your most recent request.
Resignation letter of Robert Zutter as it was part of the Agenda discussions of 7/11/2018.
File Attached
Traffic Commission members list and all Meeting Minutes of Traffic Commission for 2018.
File Attached
All Agenda documentation for VB meeting of 7/28/2018, this will include but not limited to all resolutions, all records pertaining to the financial expenditure budget changes and contractual changes made for financial expenditures for all part-time employees, and a copy of all part-time employees contracts containing changes.
No Records found
All written communications regarding Duofold, from 2014 - present date of 1/30/19
This shall include both sent and received documents/records from any Board member, department head, or attorney
I will need specific dates/specific documents you wish to see.
Have a nice weekend !
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
Therefor again provide the documents requested, of the original FOIL of January 31. 2019
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.
Sincerely,
CM Macera
Wed 3/20/2019 5:00 AM
cathy macera <maceraxx@live.com
2nd FOIL APPEAL (original of 3/14/19 appeal)
ilion@ilionny.com
NOTE*** An appeal is not the responsibility of a mere clerk, it is under Law the Duty of the Board of Trustees, as well as Village of Ilion Code.
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.
21 NYCRR 1401.7 Denial of access to records.
(a) The governing body of a public corporation or the head, chief executive or governing body of other agencies shall determine appeals or shall designate a person or body to hear appeals regarding denial of access to records under the Freedom of Information Law.
Village of Ilion Board of Trustees
Appeals Officers: Schoonmaker, McKinley, Moore, Lester Lamica
RE: FREEDOM OF INFORMMATION APPEAL
I hereby appeal the denial of access regarding my request, which was made on January 15. 2019 and sent to Village of Ilion Clerk, Wendy Penny.
The records that were denied include:
1) All Zoning Board of Appeals Minutes from January 1st, 2018 through January 15, 2019. Which shall include but not limited to all documents provided at hearings, Legal notices, fees charged AND all correspondence from the ZBA regarding decision made and any Stipulation demanded by the ZBA.
2) All permits. both Commercial and Residential issued by Codes Enforcer Officer from January 1st, 2018 through January 15, 2019 Which shall include but not limited building permits, demolition permits, as well as all documents legally required of each type of permit such as : drawings, engineering renderings, all photos, surveys, etc.
Reason for denial: no offered
Clerk response:
“Attached you will find responses to your January 15, 2019 FOIL Request. Please be advised drawings, engineering documents, photos, surveys and maps would require you to come into the office to view, as they are too large to scan.
Available hours are Monday -Friday 10am -2pm, 49 Morgan Street, Ilion, NY. I certify all records and documents are true copies, to the best , but not limited to my knowledge.”
The clerk belies the Village of Codes requirements as follows:
file:///C:/Users/macer/Desktop/APPEAL21920191152019/building_permits.pdf
attached to the permit is a relatively blank sheet (8x11) with a mere border outline.
And clearly states: A Stamped Architect/Engineer prints MAY be required prior to permit approval.
The Record Access Officer, Village Clerk Wendy Penny, failed to prov Attached you will find responses to your January 15, 2019 FOIL Request. Please be advised drawings, engineering documents, photos, surveys and maps would require you to come into the office to view, as they are too large to scan. Available hours are Monday -Friday 10am -2pm, 49 Morgan Street, Ilion, NY. ided written documentation that any larger then to scale or any required Stamped Architect/Engineer print was requested.
file:///C:/Users/macer/Desktop/APPEAL21920191152019/zoning_application_change_5.30.12.pdf
There shall be submitted with all applications for building permits two (2) copies of a layout or plot plan, drawn to scale, showing the actual dimensions of the lot to be built upon, the exact size and location on the lot of the building and accessory building to be erected and such other information as may be necessary to determine and provide for the enforcement of this chapter.
250-31. Abandonment.
Whenever a nonconforming use has been discontinued for a period of one (1) year, such use shall not hereafter be reestablished, and any future use shall be in conformity with the provisions of this chapter.
Any Variance had to been issued within the last year, to be able obtain an permit.
December 12. 2018 minutes
“Paul Bulinksi – Storage Units: Mr. Bulinski addressed the Board with concerns of the high fee he had to pay for the building permit for the new storage units he is getting ready to put up on East Clark Street. Mr. Bulinski requested from the Board a discount on the permit because he didn’t budget for such a large fee. PMO Carter stated that all business building permits are .40 per square foot. Deputy Mayor Lester feels that the cost is extremely high and asked if PMO Carter can research other Villages to see what they are charging per square foot for new constructions. Mayor Lamica told Mr. Bulinski that PMO Carter will research and then discuss with the Board his finding and then get back to him with a decision on the fee. “
January 9, 2019 minutes
“Paul Bulinski—Mr. Bulinski was inquiring about the pricing of square footage when obtaining a building permit. Property Maintenance Officer Timothy Carter said he was currently looking into the matter. Mr. Bulinski then presented documents of his building permit, variance permit, and a copy of his latest survey of property at 38 Catherine St, Ilion. The building in question is currently approximately two feet into his land. Deputy Mayor Charles Lester expressed his dissatisfaction with the lack of information on the current building permit issued by Property Maintenance Officer Timothy Carter. Mayor Lamica offered a future meeting with Mr. Bulinski to discuss the matter further. No date for said meeting has been scheduled yet.”
Provide the original requested documents.
2) All permits. both Commercial and Residential issued by Codes Enforcer Officer from January 1st, 2018 through January 15, 2019 Which shall include but not limited building permits, demolition permits, as well as all documents legally required of each type of permit such as : drawings, engineering renderings, all photos, surveys, etc.
The original request was for ALL PERMITS, I did not request a list.
Provide ALL permits as originally requested
Clerks demand of REPSONSE OF 1/31/2019 is a direct Violation 21 NYCRR 1401.1:
Attached you will find responses to your January 15, 2019 FOIL Request. Please be advised drawings, engineering documents, photos, surveys and maps would require you to come into the office to view, as they are too large to scan. Available hours are Monday -Friday 10am -2pm, 49 Morgan Street, Ilion, NY.
21 NYCRR PART 1401.4 Hours for public inspection.
(a) Each agency shall accept requests for public access to records and produce records during all hours they are regularly open for business
I have proven that you lack any standing for denial, that the Village itself has not requested FULL SCALE, the clerk, continues to violate FOIL and constitutional rights.
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.
Sincerely,
CM Macera
Wed 3/27/2019 7:20
cathy macera <maceraxx@live.com>
2 nd FOIL APPEAL attempt
ilion@ilionny.com
NOTE*** An appeal is not the responsibility of a mere clerk, it is under Law the Duty of the Board of Trustees, as well as Village of Ilion Code.
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.
21 NYCRR 1401.7 Denial of access to records.
(a) The governing body of a public corporation or the head, chief executive or governing body of other agencies shall determine appeals or shall designate a person or body to hear appeals regarding denial of access to records under the Freedom of Information Law.
Village of Ilion Board of Trustees
Appeals Officers: Schoonmaker, McKinley, Moore, Lester Lamica
RE: FREEDOM OF INFORMMATION APPEAL
I hereby appeal the denial of access regarding my request, which was made on January 31. 2019 6:12 AM and sent to Village of Ilion Clerk, Wendy Penny at ilion@ilionny.com as provided:
Dear Records Access Officer:
Please email the following records if possible
Resignation letter of Robert Zutter as it was part of the Agenda discussions of 7/11/2018
Traffic Commission members list and all Meeting Minutes of Traffic Commission for 2018.
All Agenda documentation for VB meeting of 7/28/2018, this will include but not limited to all resolutions, all records pertaining to the financial expenditure budget changes and contractual changes made for financial expenditures for all part-time employees, and a copy of all part-time employees contracts containing changes.
All written communications regarding Dufold, from 2014 - present date of 1/30/19
This shall include both sent and received documents/records from any Board member, department head, or attorney
Offered in assistance to prevent any delays or denial h ttps://docs.dos.ny.gov/coog/ftext/19562.htm
“Second, it is true that the Freedom of Information Law (FOIL) does not require that agency staff or officials provide information in response to questions, offer explanations concerning its actions or activities, or create new records in responding to requests. However, FOIL is expansive in its scope, for it pertains to all agency records, and as you are aware, a school district is an agency [see FOIL, §86(3)]. Perhaps of significance in the context of the material sought is the term “record.” Section 86(4) of FOIL defines “record” to mean “any information kept, held, filed, produced or reproduced by, with or for an agency….in any physical form whatsoever…”
In consideration of the application of FOIL not only to records in the physical possession of District officials, but also to those that may be kept or may have been prepared for the District, it is suggested that you renew your request and emphasize that it includes records kept or prepared for the District by its counsel.
Third, insofar as records are maintained by or for an agency, FOIL is based on a presumption of access and requires disclosure, except to the extent that a ground for denial of rights of access appearing in §87(2) of that statute may properly be asserted.
If there are written communications between the District’s counsel and the developer or the developer’s representative, I do not believe that any exception could validly be cited to deny access. There would be no privilege, for the client of the District’s counsel is the District; the privilege would not extend to communications to or from the developer. A provision that is often relevant in a negotiation process, §87(2)(c), authorizes an agency to withhold records insofar as disclosure “would impair present or imminent contract awards…” Since the matter has been resolved and a settlement reached, that exception is no longer pertinent. Again, if records such as those referenced here exist, they must, in my opinion, be made available.”
Please Certify that copies/records/documents are true copies
If the requested records cannot be emailed to me due to the volume ofrecords identified in response to my request, please advise me of the actual cost of copying all records onto a CD or floppy disk.
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
The records that were denied include:
All written communications regarding Duofold, from 2014 - present date of 1/30/19
This shall include both sent and received documents/records from any Board member, department head, or attorney
Reason for denial
I will need specific dates/specific documents you wish to see.
I believe I need not supply such specific details as the Clerk claims. I gave a variety of ways, to research, as nowhere on the Village Website is there any category list of records kept, or how the Village Clerk Files.
Perhaps consulting with Village Attorney, perhaps his secretary is much more proficient at electronic filling, proper categories etc.
I gave a very specific subject matter DUOFOLD, specific time frame 2014-1/30/19 and specific offering of emails, specific types of email SENT AND RECEIVED and TO WHOM AND FROM.
Ilion is a mere Village, 5 board members, half dozen depart. Heads and the same attorney for the year -to- date, save a few months in 2014.
I believe that the Village Clerk, would be familiar with who the Board members (even past), who the Village attorney is, after all it is on the official letter head. And department heads the clerk should know, for she must request their records when complying with FOIL, despite the VIL 4-402 of NY, :
The clerk of each village shall, subject to the direction and control of the mayor:
a. have custody of the corporate seal, books, records, and papers of the village and all the official reports and communications of the board of trustees;
b. act as clerk of the board of trustees and of each board of village officers and shall keep a record of their proceedings;
c. keep a record of all village resolutions and local laws;
e. shall, during office hours as prescribed by the board of trustees, on demand of any person, produce for inspection the books, records and papers of his office, and shall furnish a copy of any portion thereof,
According to Committee on opinion FOIL-AO-18949
August 20, 2012
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
Dear:
This is in response to your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the Pelham Unified Free School District. In February 2012 you asked for “any and all” email communications between Martin Brooks and Dr. Dennis Lauro. Dr. Lauro is the District’s appeals officer, with whom you have corresponded regarding your appeals. You indicated that you were initially provided with only one series of emails, but subsequent to a second appeal to Dr. Lauro, you were provided with nearly 200 pages of records and informed that there were possibly 3,000 more responsive records that the District would not review.
In this regard, we note that first, based on the language of the law and its judicial construction, a request made for a specific document or documents, or in the example that you raise, any and all correspondence beyond that of email, does not necessarily indicate that a person seeking the record has made a valid request that must be honored by an agency. In considering the requirement that records be “reasonably described”, the Court of Appeals has held that whether or the extent to which a request meets the standard may be dependent on the nature of an agency’s filing, indexing or records retrieval mechanisms [see Konigsburg v. Coughlin, 68 NY2d 245 (1986)]. When an agency has the ability to locate and identify records sought in conjunction with its filing, indexing and retrieval mechanisms, it was found that a request meets the requirement of reasonably describing the records, irrespective of the volume of the request. By stating, however, that an agency is not required to follow “a path not already trodden” (id., 250) in its attempts to locate records, we believe that the Court determined, in essence, that agency officials are not required to search through the haystack for a needle, even if they know or surmise that the needle may be there. In short, agency staff are not required to engage in herculean or unreasonable efforts in locating records to accommodate a person seeking records.
Based on the foregoing, since great numbers of records maintained electronically can be searched without undue effort, the question is what is required when the search identifies approximately 3,000 records, and whether the Freedom of Information Law imposes a responsibility on the agency to review all of them. Due to advances in information technology, the District has the ability to locate, identify and retrieve those communications with reasonable effort, and is apparently able to locate and retrieve thousands of email communications through the use of certain search terms.
The content of such records differs in each such communication. Some communications may include references to individuals, and it is possible that some aspects of those records may be redacted on the ground that disclosure would constitute “an unwarranted invasion of personal privacy” in accordance with sections 87(2)(b) and 89(2)(b) of FOIL. It may be that some reference individual students, in which case the District would be prohibited from releasing personally identifiable information. Virtually all of the communications would constitute “intra-agency material” falling within the scope of section 87(2)(g). Under that provision, some aspects of those communications may be withheld, but others must be disclosed.
The point is that, to give effect to FOIL, and to respond to a request that identifies thousands of email communications, each email must be read and reviewed individually in order determine rights of access. The time and effort needed to do so is more than substantial. Nevertheless, based on the standard prescribed by Konigsberg, a court might determine that an agency is required to engage in an effort of that magnitude.
Your offer to receive all 3,000 emails and sort through them yourself highlights how, with modern electronic search capability, it is possible that similar requests could involve the content of a “virtual” file cabinet. This request brings to mind an opinion rendered several years ago involving a request for all records contained in several file cabinets located in or near the office of a certain agency employee. It was advised in that situation that the request did not reasonably describe the records, and that the guidance offered in Fisher & Fisher v. Davison (Supreme Court, New York County, September 27, 1988) was applicable. The court referred to and rejected a voluminous request, finding that:
“Petitioner’s actual demand transcends a normal or routine request by a taxpayer. It…bring[s] in its wake an enormous administrative burden that would interfere with the day-to-day operations of an already heavily burdened bureaucracy.”
Similarly, inquiries have been directed to this office concerning requests for all email communications transmitted or received by a particular government officer or employee over a period of several years, without regard to subject matter or content. In the case of many officers or employees, there would be thousands of email communications involving scores of topics. Review of those communications to ascertain rights of access would, in the words of the decision cited above, “transcend a normal…request…”
In consideration of the realities associated with the potential of information technology and the ability to search for, locate and retrieve many thousands of records, we believe that the standard in FOIL, reasonably describing records sought in accordance with the guidance offered by the Court of Appeals in 1986, is outdated and merits modification.
From our perspective, every law must be implemented in a manner that gives reasonable effect to its intent, and we point out that in its statement of legislative intent, §84 of the Freedom of Information Law states that "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible."
Accordingly, until and unless the Law is amended to focus on the reality that the high volume of material that can be located with reasonable effort through electronic means, it is our opinion that it is unreasonable to require an agency to review thousands of records that may contain a particular search term or termterms in response to a Freedom of Information Law request. As is the case here, it would be an unreasonable burden, in our view, to require an agency to review perhaps thousands of individual records in order to identify those portions of such records that are required to be made available.
Therefore, while you could initiate a judicial proceeding, it may be more efficient to narrow the scope of your request.
With respect to your request that a search be conducted for paper records that contain the identified terms, we rely on the Court’s ruling in Konigsberg, discussed earlier, in support of our opinion that the agency has a responsibility to locate records based on the indexing system in place at the time of the request. If the agency is able to locate the requested records with reasonable effort, it is required to do so; however, nothing in the Law would require the agency to search every paper record in its custody to locate those that contain certain terms.
With respect to your questions regarding certification, when an agency indicates that it does not maintain or cannot locate a record, an applicant for the record may seek a certification to that effect. Section 89(3) of the Freedom of Information Law provides in part that, in such a situation, on request, an agency “shall certify that it does not have possession of such record or that such record cannot be found after diligent search.” It is emphasized that when a certification is requested, an agency “shall” prepare the certification; it is obliged to do so.
Finally, with respect to the amount of time permitted to respond to an appeal, we reference §89(4)(b), which states that a failure to determine an appeal within ten business days of the receipt of an appeal constitutes a denial of the appeal. In that circumstance, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules.
We hope that this is helpful.
CSJ:sb
Received on February 8, 2019
Dear Catherine Macera:
Attached please find results of your most recent request.
Resignation letter of Robert Zutter as it was part of the Agenda discussions of 7/11/2018.
File Attached
Traffic Commission members list and all Meeting Minutes of Traffic Commission for 2018.
File Attached
All Agenda documentation for VB meeting of 7/28/2018, this will include but not limited to all resolutions, all records pertaining to the financial expenditure budget changes and contractual changes made for financial expenditures for all part-time employees, and a copy of all part-time employees contracts containing changes.
No Records found
All written communications regarding Duofold, from 2014 - present date of 1/30/19
This shall include both sent and received documents/records from any Board member, department head, or attorney
I will need specific dates/specific documents you wish to see.
Have a nice weekend !
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
Therefor again provide the documents requested, of the original FOIL of January 31. 2019
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.
Sincerely,
CM Macera
Thu 3/28/2019 12:43 PM
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