Thu 3/28/2019 12:43 PM
cathy macera maceraxx@live.com
FOIL REQUEST
Ilion@ilionny.com
3/28/2019
FOIL REQUEST
Dear Records Access Officer:
Please email the following records if possible
Copies of all Union and Non-union contracts, this shall include, but not limited to, Fire Chief, Police Chief, and any nonpublic employees’ contracts that effect the expenditures and/ or revenues of the 2019-2020 Tentative Budget. Find supportive opinion below
Copies of the actual FOIL REQUESTS, all coordinating FOIL REPONSES from February 25, 2019 through March 28, 2019. I am not requesting the FOIL log or the actual records that were supplied, this is a very simple request of correspondence between the requestor and all responses, find supporting opinions from coog below.
Certify that the records are true copies, upon failure to locate records, certify that (i) the agency is not the custodian for such records; or (ii) the records of which the agency is a custodian cannot be found after diligent search refer to coog opinion below.
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 it is necessary to modify my request, direct a concern to macera44@live.com
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
RE Certify
FOIL 19303
From: Sent: To: Cc:
Subject:
Freeman, Robert J (DOS) Tuesday, October 27, 2015 9:40 AM
RE: FOIL REQUEST
Assuming that a request involves existing records, FOIL and the regulations promulgated by the Committee on Open Government, which have the force and effect of law (21 NYCRR Part 1401), offer direction.
Section 89(3)(a) of FOIL states in part that when an agency provides access to a copy of a record, the agency “shall certify to the correctness of such copy if so requested, or as the case may be, shall certify that it does not have possession of such record or that such record cannot be found after diligent search.” The regulations (21 NYCRR §1401.2(b) direct that the “The records access officer is responsible for assuring that agency personnel….(6) Upon request, certify that a record is a true copy. (7) Upon failure to locate records, certify that (i) the agency is not the custodian for such records; or (ii) the records of which the agency is a custodian cannot be found after diligent search.”
From there, §1401.8 states that “Except when a different fee is otherwise prescribed by statute: (a) An agency shall not charge a fee for the following… (4) any certification required pursuant to this Part…”
Based on the foregoing, no fee can be charged if a copy of an existing record is made available and the recipient asks that the agency certify that the record is a true copy of its record. I note, too, that the term “statute” has been determined to be an enactment of the State Legislature and that a local law or ordinance, for example, does not constitute a statute.
I hope that the foregoing serves to clarify and that I have been of assistance.
RE request of request
August 21, 2014
FOIL-AO-19168
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 facts presented in your correspondence.
Dear
We are in receipt of your inquiry concerning the application of the Freedom of Information Law (FOIL) based on the public statement made by Maya Wiley, the counsel to the Mayor of New York City, Bill de Blasio, that “the Mayor’s office routinely denies requests for FOIL logs from reporters”. Further, according to your letter, “Wiley [stated] that such requests can be denied since the competitive advantage of news outlets would be threatened, [if] other outlets can see what requests a given outlet has made,” and denied your request on the ground that the news outlets constitute “commercial enterprises”.
In this regard, we offer the following comments.
First, as a general matter, an agency need not create records or reports to satisfy a request, for FOIL pertains to existing records [see §89(3)].
However, we note that §86(4) of FOIL 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."
Based upon the language quoted above, if information is maintained in some physical form, it would constitute a "record" subject to rights of access conferred by FOIL.
Although an agency need not create new records to comply with FOIL, §89(3)(a) states that, “when an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so.” In that kind of situation, the agency would merely be retrieving data that it has the capacity to retrieve; it would not be creating a new record.
If logs or similar documents exist, but if they do not include, for example, “the sum and substance” of the requests, again, FOIL would not require the preparation of new records containing that information. However, insofar as the items sought can be generated and retrieved with reasonable effort, we believe that they must be disclosed to comply with FOIL and disagree with the response offered by Ms. Wiley. On the basis of that response, it appears that she alluded to §87(2)(d) of FOIL, which authorizes an agency to withhold records that:
"are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise..."
It is emphasized that the courts have consistently interpreted the Freedom of Information Law in a manner that fosters maximum access. As stated by the Court of Appeals, the state’s highest court, nearly thirty years ago:
"To be sure, the balance is presumptively struck in favor of disclosure, but in eight specific, narrowly constructed instances where the governmental agency convincingly demonstrates its need, disclosure will not be ordered (Public Officers Law, section 87, subd 2). Thus, the agency does not have carte blanche to withhold any information it pleases. Rather, it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the courts for in camera inspection, to exempt its records from disclosure (see Church of Scientology of N.Y. v. State of New York, 46 NY 2d 906, 908). Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld" [Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)]."
In another decision rendered by the Court of Appeals, it was held that:
"Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, Farbman & Sons v. New York City, 62 NY 2d 75, 80 (1984); and Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)].
Moreover, in the same decision, in a statement regarding the intent and utility of the Freedom of Information Law, it was found that:
"The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v New York City Health and Hosps. Corp., 62 NY 2d 75, 79). The statute, enacted in furtherance of the public's vested and inherent 'right to know', affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information 'to make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of government officers" (id., 565-566).
The question under §87(2)(d) involves the extent, if any, to which disclosure would "cause substantial injury to the competitive position" of a commercial entity.
The concept and parameters of what might constitute a "trade secret" were discussed in Kewanee Oil Co. v. Bicron Corp., which was decided by the United States Supreme Court in 1973 (416 (U.S. 470). Central to the issue was a definition of "trade secret" upon which reliance is often based. Specifically, the Court cited the Restatement of Torts, section 757, comment b (1939), which states that:
"[a] trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers" (id. at 474, 475).
In its review of the definition, the court stated that "[T]he subject of a trade secret must be secret, and must not be of public knowledge or of a general knowledge in the trade or business" (id.). The phrase "trade secret" is more extensively defined in 104 NY Jur 2d 234 to mean:
"...a formula, process, device or compilation of information used in one's business which confers a competitive advantage over those in similar businesses who do not know it or use it. A trade secret, like any other secret, is something known to only one or a few and kept from the general public, and not susceptible to general knowledge. Six factors are to be considered in determining whether a trade secret exists: (1) the extent to which the information is known outside the business; (2) the extent to which it is known by a business' employees and others involved in the business; (3) the extent of measures taken by a business to guard the secrecy if the information; (4) the value of the information to a business and to its competitors; (5) the amount of effort or money expended by a business in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. If there has been a voluntary disclosure by the plaintiff, or if the facts pertaining to the matter are a subject of general knowledge in the trade, then any property right has evaporated."
From our perspective, the nature of record, the area of commerce in which a commercial
entity is involved and the presence of the conditions described above that must be found to
characterize records as trade secrets would be the factors used to determine the extent to which
disclosure would "cause substantial injury to the competitive position" of a commercial enterprise. Therefore, the proper assertion of §87(2)(d) would be dependent upon the facts and, again, the effect of disclosure upon the competitive position of the entity to which the records relate.
In our view, a FOIL request, even if it is unusual or creative, cannot be withheld pursuant to §87(2)(d). The Court of Appeals has found that the exception “turns on the commercial value of the information to competitors and the cost of acquiring it through other means…” [Encore College Bookstores v. Auxiliary Service Corporation of the State University, 87 NY2d 410, 420 (1995)]. In the same decision, the Court referred to the “economic windfall” that would accrue to the company requesting the records should the records be disclosed, and the resultant “substantial competitive injury” to the company that created the records (id.. 421). In consideration of the speed in which events become known and the ability of news media organizations to seek information regarding those events, it is rare that a request involves items or events that may be characterized as “secret” or which if disclosed would “cause substantial injury” to the competitive position of a news organization.
As noted earlier, to sustain a denial of access, it must be clear that an exception can be justified and that the harmful effect of disclosure be demonstrated to meet the burden of defending secrecy. In that regard, in its consideration of the assertion of §87(2)(d), the Court of Appeals has held that “To meet its burden, the party seeking exemption must present specific, persuasive evidence that disclosure will cause it to suffer a competitive injury; it cannot merely rest on a speculative conclusion that disclosure might potentially cause harm” [Markowitz v.Serio, 11 NY3d 43, 51 (2008)].
Even when §87(2)(d) is pertinent, the ability to deny access under that provision is not permanent. For instance, detailed, current financial information regarding a commercial enterprise could be devastating if disclosed today to a competitor. However, the impact of disclosure of the same information three years from now will be different and perhaps innocuous. In the context of your request, we do not believe that the records at issue may be withheld pursuant to §87(2)(d) or any other exception to rights of access.
Finally, the FOIL playing field is level; everyone, and every news organization, has the same rights of access and the same capacity to request and obtain records. No one has an advantage over anyone else with respect to the right or capacity to seek government records. Because that is so, again, the denial of your request is, in our view, inconsistent with law.
I hope that I have been of assistance
Sincerely,
Robert J. Freeman
Executive Director
RJF:paf
RE Contracts
FOIL-AO-18075
April 15, 2010
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
As you are aware, I have received your letter and related correspondence pertaining to requests made by your client, the Cold Spring Harbor Central School District, pursuant to the Freedom of Information Law for records maintained by the Syosset Central School District.
The requests involve the 2008-2009 and 2009-2010 employment contracts “for each employee assigned to the District’s central office”, as well the District’s health insurance contracts covering the same period, “involving each health insurance company...which provides health insurance coverage for each of the above-described employees.” Notwithstanding the clarity and nature of your request, you have encountered a series of delays and, as of the date of your letter this office, had not received the records sought.
From my perspective, the records at issue are clearly accessible and routinely disclosed under the Freedom of Information Law. 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 (k) of the Law.
Contracts, bills, vouchers, receipts and similar records reflective of expenses incurred by an agency or payments made to an agency's staff must generally be disclosed, for none of the grounds for denial could appropriately be asserted to withhold those kinds of records. Likewise, in my opinion, a contract between an administrator or any employee and a school district or board of education clearly must be disclosed under the Freedom of Information Law. It is noted that there is nothing in the statute Law that deals specifically with personnel records or personnel files. Further, the nature and content of so-called personnel files may differ from one agency to another, and from one employee to another. In any case, neither the characterization of documents as "personnel records" nor their placement in personnel files would necessarily render those documents confidential or deniable under the Freedom of Information Law (see Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980). On the contrary, the contents of those documents serve as the relevant factors in determining the extent to which they are available or deniable under the Freedom of Information Law.
The provision in the Freedom of Information Law of most significance under the circumstances is, in my view, §87(2)(b). That provision permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy".
While the standard concerning privacy is flexible and may be subject to conflicting interpretations, the courts have provided substantial direction regarding the privacy of public officers employees. It is clear that public officers and employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that public officers and employees are required to be more accountable than others. Further, with regard to records pertaining to public officers and employees, the courts have found that, as a general rule, records that are relevant to the performance of a their official duties are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d 562 (1986)]. Conversely, to the extent that records are irrelevant to the performance of one's official duties, it has been found that disclosure would indeed constitute an unwarranted invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov. 22, 1977].
In a discussion of the intent of the Freedom of Information Law by the state's highest court in a case cited earlier, the Court of Appeals in Capital Newspapers, supra, found that the statute:
"affords all citizens the means to obtain information concerning the day-to-day functioning of state and local government thus providing the electorate with sufficient information to 'make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of government officers" (67 NY 2d at 566).
In short, I believe that an employment contract involving an individual or a collective bargaining agreement between a public employer and a public employee union, must be disclosed, for it is clearly relevant to the duties, terms and conditions regarding the employment of a public employee or employees.
Similarly, contracts between a school district or other government agency and a health insurance company that provides health insurance coverage for an employee or employees would be accessible. Again, none of the grounds for denial of access would be applicable relative to records of that nature.
I note, too, that although the second category of records sought relates to health insurance, the Health Insurance Portability and Accountability Act (HIPAA) excludes from its coverage “Employment records held by a covered entity in its role as employer” (45 CFR 160.103). That being so, HIPAA does not serve as a bar to disclosure.
Next, the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3) of the Freedom of Information Law states in part that:
"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied...”
It is noted that new language was added to that provision in 2005 stating that:
“If circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part.”
Based on the foregoing, an agency must grant access to records, deny access in writing, or acknowledge the receipt of a request within five business days of receipt of a request. When an acknowledgement is given, it must include an approximate date within twenty business days indicating when it can be anticipated that a request will be granted or denied. However, if it is known that circumstances prevent the agency from granting access within twenty business days, or if the agency cannot grant access by the approximate date given and needs more than twenty business days to grant access, it must provide a written explanation of its inability to do so and a specific date by which it will grant access. That date must be reasonable in consideration of the circumstances of the request.
The amendments clearly are intended to prohibit agencies from unnecessarily delaying disclosure. They are not intended to permit agencies to wait until the fifth business day following the receipt of a request and then twenty additional business days to determine rights of access, unless it is reasonable to do so based upon “the circumstances of the request.” From my perspective, every law must be implemented in a manner that gives reasonable effect to its intent, and I 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." Therefore, when records are clearly available to the public under the Freedom of Information Law, or if they are readily retrievable, there may be no basis for a delay in disclosure. As the Court of Appeals, the state’s highest court, has asserted:
"...the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom. By their very nature such objectives cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception. The phrase 'public accountability wherever and whenever feasible' therefore merely punctuates with explicitness what in any event is implicit" [Westchester News v. Kimball, 50 NY2d 575, 579 (1980)].
In a judicial decision concerning the reasonableness of a delay in disclosure that cited and confirmed the advice rendered by this office concerning reasonable grounds for delaying disclosure, it was held that:
“The determination of whether a period is reasonable must be made on a case by case basis taking into account the volume of documents requested, the time involved in locating the material, and the complexity of the issues involved in determining whether the materials fall within one of the exceptions to disclosure. Such a standard is consistent with some of the language in the opinions, submitted by petitioners in this case, of the Committee on Open Government, the agency charged with issuing advisory opinions on FOIL”(Linz v. The Police Department of the City of New York, Supreme Court, New York County, NYLJ, December 17, 2001).
If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time beyond the approximate date of less than twenty business days given in its acknowledgement, if it acknowledges that a request has been received, but has failed to grant access by the specific date given beyond twenty business days, or if the specific date given is unreasonable, a request may be considered to have been constructively denied [see §89(4)(a)]. In such a circumstance, the denial may be appealed in accordance with §89(4)(a), which states in relevant part that:
"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."
Section 89(4)(b) was also amended, and it 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.
I note that legislation enacted in 2006 broadened the authority of the courts to award attorney’s fees when government agencies fail to comply with the Freedom of Information Law. Under the amendments, when a person initiates a judicial proceeding under the Freedom of Information Law and substantially prevails, a court has the discretionary authority to award costs and reasonable attorney’s fees when the agency had no reasonable basis for denying access to records, or when the agency failed to comply with the time limits for responding to a request.
Lastly, the correspondence indicates that the Syosset Central School District requires that its form be completed in order to request records under the Freedom of Information Law. While an agency may require that a request be made in writing, it has consistently been advised that an applicant cannot be required to complete an agency’s prescribed form as a condition precedent to requesting records.
In an effort to enhance understanding of and compliance with the Freedom of Information Law, and to attempt to avoid costly and time consuming litigation, copies of this opinion will be forwarded to Syosset officials.
I hope that I have been of assistance.
Sincerely,
Robert J. Freeman
Executive Director
RJF:jm
cc: Jeffrey B. Streitman
Angela S. Eisert
William Bernhard
FOIL-AO-f18075
18075
Mon 4/1/2019 10:35 AM
cathy macera maceraxx@live.com
2nd FOIL APPEAL of 3/15/2019
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
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 4/4/2019 1:57 PM
cathy macera maceraxx@live.com
FOIL REQUEST
Dear Records Access Officer:
Please email the following records if possible :
ALL Water Department testing data for ALL of January 2019, this shall include, but NOT limit to: all turbidity, nitrate, nitrite, lead , copper, radiological and synthetic organic compound, trihalomethanes, inorganic and volatile organic compounds, halo acetic aaids, coliform bacteria 13 times, current treatments being used, distribution conditions, treatment plant log listing of chlorine being used, sea quest, orthophosphates, daily operational logs both the treatment plant and distribution system
All Department reports for March 13 and March 27
March 18, 2019 “special” meeting.
Please all certify all records to be true copies.
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
Mon 4/29/2019 6:28 AM
cathy macera macera44@live.com
FOIL APPEAL OF 4/4/2019 REQUEST
FORWARD TO APPEAL OFFICERS
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.
Appeals Officers: schoonmaker, mcKinley, moore, lester lamica
As you see below, a copy of the original request, highlighted in yellow, along with the requested records, I did supply ample legal standings and Committee of Open Government opinions, that supported the release of all requests.
The Clerk violated FOIL by failing to acknowledge receipt of request within 5 business days, which was due by 4/10/2019.
Offering legal standing, from Committee on Open Government and Opinion, I hereby demand that, you either fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought.” This shall be returned within the 10 day time frame, I expect the response no later than May 22, 2019 end of business via email.
CM Macera
It is noted that new language was added to that provision in 2005 stating :
The amendments clearly are intended to prohibit agencies from unnecessarily delaying disclosure. They are not intended to permit agencies to wait until the fifth business day following the receipt of a request and then twenty additional business days to determine rights of access, unless it is reasonable to do so based upon “the circumstances of the request.” 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.” Therefore, when records are clearly available to the public under the Freedom of Information Law, or if they are readily retrievable, there may be no basis for a delay in disclosure. As the Court of Appeals, the state’s highest court, has asserted:
“...the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom. By their very nature such objectives cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception. The phrase ‘public accountability wherever and whenever feasible’ therefore merely punctuates with explicitness what in any event is implicit” (Westchester News v. Kimball, 50 NY2d 575, 579, 430 NYS2d 574 [1980]).
“The determination of whether a period is reasonable must be made on a case by case basis taking into account the volume of documents requested, the time involved in locating the material, and the complexity of the issues involved in determining whether the materials fall within one of the exceptions to disclosure. Such a standard is consistent with some of the language in the opinions, submitted by petitioners in this case, of the Committee on Open Government, the agency charged with issuing advisory opinions on FOIL” (Linz v. The Police Department of the City of New York, Supreme Court, New York County, NYLJ, December 17, 2001).
If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time beyond the approximate date of less than twenty business days given in its acknowledgement, if it acknowledges that a request has been received, but has failed to grant access by the specific date given beyond twenty business days, or if the specific date given is unreasonable, a request may be considered to have been constructively denied (see §89[4][a]). In such a circumstance, the denial may be appealed in accordance with §89(4)(a), which states in relevant part that:
“...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought.”
Section 89(4)(b) was also amended, and it 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 Law and Rules.
at:
Original request:
Thu 4/4/2019 1:57 PM
FOIL REQUEST
ilion@ilionny.com
Dear Records Access Officer:
Please email the following records if possible :
ALL Water Department testing data for ALL of January 2019, this shall include, but NOT limit to: all turbidity, nitrate, nitrite, lead , copper, radiological and synthetic organic compound, trihalomethanes, inorganic and volatile organic compounds, halo acetic aaids, coliform bacteria 13 times, current treatments being used, distribution conditions, treatment plant log listing of chlorine being used, sea quest, orthophosphates, daily operational logs both the treatment plant and distribution system
All Department reports for March 13 and March 27
March 18, 2019 “special” meeting.
Please all certify all records to be true copies.
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
RE Certify
FOIL 19303
From: Sent: To: Cc:
Subject:
Freeman, Robert J (DOS) Tuesday, October 27, 2015 9:40 AM
RE: FOIL REQUEST
Assuming that a request involves existing records, FOIL and the regulations promulgated by the Committee on Open Government, which have the force and effect of law (21 NYCRR Part 1401), offer direction.
Section 89(3)(a) of FOIL states in part that when an agency provides access to a copy of a record, the agency “shall certify to the correctness of such copy if so requested, or as the case may be, shall certify that it does not have possession of such record or that such record cannot be found after diligent search.” The regulations (21 NYCRR §1401.2(b) direct that the “The records access officer is responsible for assuring that agency personnel….(6) Upon request, certify that a record is a true copy. (7) Upon failure to locate records, certify that (i) the agency is not the custodian for such records; or (ii) the records of which the agency is a custodian cannot be found after diligent search.”
From there, §1401.8 states that “Except when a different fee is otherwise prescribed by statute: (a) An agency shall not charge a fee for the following… (4) any certification required pursuant to this Part…”
Based on the foregoing, no fee can be charged if a copy of an existing record is made available and the recipient asks that the agency certify that the record is a true copy of its record. I note, too, that the term “statute” has been determined to be an enactment of the State Legislature and that a local law or ordinance, for example, does not constitute a statute.
I hope that the foregoing serves to clarify and that I have been of assistance.
FOIL-AO-19269
January 29, 2015
TO:
FROM: Camille Jobin-Davis, Assistant Director
CC:
The staff of the Committee on Open Government is authorized to issued advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence, expect as otherwise.
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 Teachers’ Retirement System of the City of New York. Specifically, you requested all correspondence to, from, or about Atlantic-Pacific Capital, The Yucaipa Companies, and/or Yucaipa American Alliance Fund II, LP, letters and other records related to disclosures; marketing materials; presentations; and copies of all other public records requests seeking any of the information being sought in this request, response letters and all documents provided to requestors. In response, TRS provided four pages of records, denying access to records of minutes of executive sessions, and records of reports prepared by outside consultants retained by TRS. On appeal, TRS clarified the bases for the denial of access to executive session minutes and consultant reports in their entirety.
It is our opinion that TRS has failed to comply with basic requirements of the Freedom of Information Law, including conducting a reasonable search for requested records, responding to requests within a reasonable time frame, and perhaps failing to provide sufficient access to records identified as responsive. In this regard, and in an effort to provide advice and counsel on these matters so as to avoid litigation, we offer the comments below.
First, 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 (l) of the Law. It is emphasized that the introductory language of §87(2) refers to the authority to withhold “records or portions thereof” that fall within the scope of the exceptions that follow. In our view, the phrase quoted in the preceding sentence evidences recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld. That being so, we believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.
The Court of Appeals, the state’s highest court, expressed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department (87 NY2d 267, 653 NYS2d 54 [1996]), stating that:
“To ensure maximum access to government records, the ‘exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption’ (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 NY2d 106, 109) see, Public Officers Law § 89[4][b]). As this Court has stated, ‘[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld’ (Matter of Fink v. Lefkowitz, 47 NY2d 567, 571)” (87 NY2d at 275).
Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the Police Department contended that certain reports could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g). The Court, however, wrote that: “Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports. We agree” (id., 276), and stated as a general principle that “blanket exemptions for particular types of documents are inimical to FOIL's policy of open government” (id., 275). The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, stating that:
“...to invoke one of the exemptions of section 87(2), the agency must articulate ‘particularized and specific justification’ for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 NY2d at 571). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 133; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 NY2d at 83)” (87 NY2d at 275).
In the context of your requests, TRS has engaged in a blanket denial of access in a manner which, in our view, is equally inappropriate. We are not suggesting that the records sought must be disclosed in full. Rather, based on the direction given by the Court of Appeals in several decisions, the records must be reviewed by TRS for the purpose of identifying those portions of the records that might fall within the scope of one or more of the grounds for denial of access. As the Court stated later in the decision: “Indeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof, under any other applicable exemption, such as the law-enforcement exemption or the public-safety exemption, as long as the requisite particularized showing is made” (id., 277; emphasis added).
Second, the Freedom of Information Law requires that an applicant “reasonably describe” records of the agency. The corollary to this requirement, as specified by the highest court, is that an agency is required to make a “reasonable effort” to locate responsive records. We note that your request would encompass documents that are likely to exist, yet for which the agency has offered no response. For example, it may be that there are fee agreements with the private companies mentioned, correspondence between representatives of the companies and employees of TRS, marketing materials from the companies, and perhaps FOIL requests for such records other than the one at issue here, given the years encompassed by the request and the nature of the relationship between TRS and the firms.
In the alternative, we note that when an agency indicates that it does not maintain or cannot locate a record, as is implied here, 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.
Third, it is our opinion that records or minutes of executive sessions are not protected from disclosure pursuant to state or federal statute. In its denial of access, TRS relies on a judicial decision from 1997 in which the court held that a tape recording of an executive session is exempt from FOIL under §87(2)(a), Wm. J. Kline & Sons v. County of Hamilton (235 AD2d 44, 663 NYS2d 339 [3rd Dept 1997]). We disagree with TRS’ reliance on this determination for multiple reasons.
Primarily, there is no state or federal law that we know of that makes a discussion in executive session “confidential.” Much like the Freedom of Information Law, the Open Meetings Law is based on a presumption that all discussions pertaining to public business and involving a quorum of members of a public body except or unless there is grounds for entry into executive session and a majority of the members vote affirmatively. The decision to enter into executive session is entirely discretionary, as is the authority of an agency to deny access to records under the exceptions to FOIL. If there is a state or federal statute that makes a record “confidential” it is typically prohibited from being disclosed except to certain narrowly defined individuals. If there is a state or federal statute that makes a discussion “confidential”, such discussion, and in fact the entire gathering of the quorum at which the discussion is held is exempt from Open Meetings Law pursuant to subsection (3) of §108, set forth in relevant part as follows:
“Exemptions. Nothing contained in this article shall be construed as extending the provisions hereof to:
1. judicial or quasi-judicial proceedings…
2. deliberations of political committees, conferences and caucuses….
3. any matter made confidential by federal or state law.”
For example, when a quorum of a public body meets with its attorney to request and receive legal advice, or discuss litigation strategy with its attorney, as the Board of Supervisors did in Wm. J. Kline & Sons, supra, such gathering is exempt from the Open Meetings Law. While there is sometimes confusion between permitted executive session discussion topics and those that are exempt, “exempt” means that the Open Meetings Law does not apply; there is no requirement to provide notice to the public, or to allow the public to witness and observe, and no requirement for a motion to enter into executive session from the public portion of a meeting.
Further, both the state’s highest court, the Court of Appeals, and federal courts in construing access statutes have determined that the characterization of records as “confidential” or “exempted from disclosure by statute” must be based on statutory language that specifically confers or requires confidentiality. As stated by the Court of Appeals:
“Although we have never held that a State statute must expressly state it is intended to establish a FOIL exemption, we have required a showing of clear legislative intent to establish and preserve that confidentiality which one resisting disclosure claims as protection” (Capital Newspapers v. Burns, 67 NY2d 562, 567, 505 NYS2d 576 [1986]).
In like manner, in construing the equivalent exception to rights of access in the federal Act, it has been found that:
“Exemption 3 excludes from its coverage only matters that are:
specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.
“5 U.S.C. § 552(b)(3) (1982) (emphasis added). Records sought to be withheld under authority of another statute thus escape the release requirements of FOIA if – and only if – that statute meets the requirements of Exemption 3, including the threshold requirement that it specifically exempt matters from disclosure. The Supreme Court has equated ‘specifically’ with ‘explicitly.’ Baldridge v. Shapiro, 455 U.S. 345, 355, 102 S.Ct. 1103, 1109, 71 L.Ed.2d 199 (1982). ‘[O]nly explicit non-disclosure statutes that evidence a congressional determination that certain materials ought to be kept in confidence will be sufficient to qualify under the exemption.’ Irons & Sears v. Dann, 606 F.2d 1215, 1220 (D.C.Cir.1979) (emphasis added). In other words, a statute that is claimed to qualify as an Exemption 3 withholding statute must, on its face, exempt matters from disclosure in the actual words of the statute” (Reporters Committee for Freedom of the Press v. U.S. Department of Justice, 816 F.2d 730, 735 [1987]; modified on other grounds, 831 F.2d 1184 [1987]; reversed on other grounds, 489 U.S. 789 [1989]; see also British Airports Authority v. C.A.B., D.C.D.C.1982, 531 F.Supp. 408; Inglesias v. Central Intelligence Agency, D.C.D.C.1981, 525 F.Supp, 547; Hunt v. Commodity Futures Trading Commission, D.C.D.C.1979, 484 F.Supp. 47; Florida Medical Ass’n, Inc. v. Department of Health, Ed. & Welfare, D.C.Fla.1979, 479 F.Supp. 1291).
In short, to be “exempted from disclosure by statute”, both state and federal courts have determined that a statute must leave no discretion to an agency: it must withhold such records.
In contrast, when records are not exempted from disclosure by a separate statute, both the Freedom of Information Law and its federal counterpart are permissive. Although an agency may withhold records in accordance with the grounds for denial appearing in §87(2), the Court of Appeals held that the agency is not obliged to do so and may choose to disclose, stating that:
“...while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provision contains permissible rather than mandatory language, and it is within the agency’s discretion to disclose such records...if it so chooses” (Capital Newspapers, supra, 567).
The same analysis is applicable in the context of the Open Meetings Law. While that statute authorizes public bodies to conduct executive sessions in circumstances described in paragraphs (a) through (h) of §105(1), again, there is no requirement that an executive session be held even though a public body has the right to do so. The introductory language of §105(1), which prescribes a procedure that must be accomplished before an executive session may be held, clearly indicates that a public body “may” conduct an executive session only after having completed that procedure. If a motion is made to conduct an executive session for a valid reason, and the motion is not carried, the public body could either discuss the issue in public or table the matter for discussion in the future.
Please note that while it is our opinion that minutes of executive sessions are not “confidential” pursuant to state or federal law, they are, as TRS has mentioned, intra-agency records and would likely contain material that could be withheld from disclosure. Were the matter to be brought to court, the burden of proof would be on the agency, of course, to show how the records or portions thereof were protected.
Additionally, while we agree with TRS’ contention that consultant reports are intra-agency records, pursuant to the decision in Xerox Corporation v. Town of Webster (65 NY2d 131, 490 NYS2d 488 [1985]), insofaras the reports contain “statistical or factual tabulations or data,” they would be required to be released, at least in part, pursuant to §87(2)(g)(i).
Finally, although not raised in either of its responses, TRS may have records of agreements regarding management fees with the above-mentioned firms. Some have argued that disclosure of such fee agreements would cause substantial injury to the competitive position of the firms or the funds, and would therefore not be required to be disclosed pursuant to §87(2)(d); however, we note news from California regarding the California Public Employee’s Retirement Systems’ disclosure of management fees it pays to individual venture capital, hedge, and other private equity funds in which it invests. See http://firstamendmentcoalition.org/2009/06/cfac-v-calpers/.
In this regard, the courts, and particularly the Court of Appeals, have clearly confirmed that in order to meet the burden of proof in denying access to records, agencies must provide “persuasive evidence” that disclosure would cause the harm envisioned by an exception to rights of access. Specifically in relation to §87(2)(d), an agency must demonstrate that disclosure would cause actual harm, rather than a “speculative conclusion that disclosure might potentially cause harm” (Markowitz v. Serio, 11 NY3d 43, 51, 862 NYS2d 833 [2008]).
We hope this is helpful.
FOIL-AO-f19269
19269
Tue 5/14/2019 7:25 AM
cathy macera maceraxx@live.com
FOIL REQUEST
Please email the following records if possible :
All DEC reports received regarding Duofold from October 2018 to present date of 5/14/2019
Letter from USDA NRCS regarding extension of 8/24/14 for project 68-2C31-4-0001
All records from Tom Bates (Mc Donald Engineering) describing well construction vs. filter replacement approaches from 2/12/14 meeting
Bond Anticipation Note /resolution of $2, 100,000.00 of 2014
Please all certify all records to be true copies.
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
Commenti