Archive: Opinions

Letters to the EditorI wish to explain some of the intent of the FOIL law in New York, and address some of the comments from Town Attorney Guy Krogh and Deputy Town Supervisor Bud Shattuck in the March 9, 2007 Lansing Star Online regarding my FOIL request for information regarding the proposed Sewer Project.

First, I have submitted the FOIL request-which can be found on www.NoLansingSewers.com by clicking the “In The News” button on the Welcome page, in-part to make public, or to “sunshine” the decision making processes used to permanently hire the new Town Environmental Planner, an Engineer, and two Water & Sewer Positions. The latter two taxpayer-funded permanent Town of Lansing positions are especially presumptive, as we currently have no Town Sewer.

I am also attempting to understand why so many developers, a bank president and owners of property on Cayuga Lake seem to have found their way onto the Lansing Sewer Committee, and what internal correspondences they have made with public officials and private firms. I am trying to determine exactly what is going on behind closed doors in the Lansing Town Hall, and make it public on my website. Clearly, this is going to be a struggle, as the Town has basically said they won’t divulge anything other than meeting minutes from Town Board and Sewer Committee Meetings-the Town reply can also be found on the “In The News” section of my website.

The history of government compliance with FOIL requests in New York is dismal. Typically, as with the Town of Lansing reply, there is resistance to giving any records of substance. The requestor then has the option of appealing the denial to the head of the Town. They usually just reiterate the refusal their attorney provided. The FOIL requestor may then initiate a challenge (legal complaint) via Article 87 of the Civil Practice Rules. Unfortunately, even if the Town is found to have violated the law, they are rarely penalized for it, and the requestor cannot retrieve their legal costs for suing the government body unless the Town is found to have willfully and maliciously broken the law, which is almost never the outcome of these complaints. Clearly, in practice, the entire burden is on the requestor, which is the opposite of the intent of the FOIL law.

Regarding specific statements made by Mr. Krogh, he says in the March 9 Lansing Star Online “I took the liberty of explaining (to Mr. Bahar) that FOIL has a specific provision that says the Town can recover its costs.”

Mr. Krogh is not disclosing the entire intent of the FOIL law, which is “…an agency cannot charge for search or clerical time. An agency cannot charge for records transmitted via email. If an agency has reasonable means to convert accessible records from one electronic format into another more desirable format, they must do so at your request.” Additionally, the FOIL law states that “it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible”.

Mr. Krogh also states that my FOIL request was general in nature and not specific. I don’t know how much more specific a request can be when I state that I want copies of contracts the Town has had with Stearns and Wheeler, Tompkins County Trust Company, Allardice and Associates, and T.G. Miller. How is that a “general” request?

Mr. Krogh also states that FOIL “doesn’t require you to turn over inter-agency materials that don’t lead to a decision”. Again, Mr. Krogh is being very selective in his statement, knowing the burden of challenge is upon me. In reality, and I quote from the FOIL website, “…an internal communication that does not represent or relate to a final agency determination does not remove it from the scope of rights of access. On the contrary, the content of the communication is the key to ascertaining how much can be withheld, or conversely, how much must be disclosed. Secondly, “factual” information available under the law does not have to consist of numbers, charts or graphs; it might be factual statements, and that must be disclosed. And third, the exception does not apply to communications with persons or entities outside of government.

Clearly Mr. Krogh gives the appearance obfuscating the FOIL process.

Mr. Shattuck then says in the same article that they are keeping track of the Town Clerk’s time. He may not charge me for that time as is clearly stated in the FOIL law. Also, Mr. Shattuck states that my request is a “frivolous waste of time for government officials”. This is a slap in the face of all folks whom live in the Town of Lansing that want to know exactly what goes on in their Town government, and reflects an unfortunate attitude towards the FOIL law.

I hope that all my neighbors in Lansing can see what is going on in the Town Hall, and that the arrogance that prevails there is justly rewarded with a sewer defeat and a complete change-out of our Town leadership in the next election cycle. A change-out that will lead to a Town government that has the appearance of credibility and competence, instead of the appearance of hidden interests and developer greed.

From: Hugh Bahar

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