State of New York Sides with Talk of the Sound in Freedom of Information Dispute with City of New Rochelle

The New York State Committee of Open Government has issued an advisory opinion finding for Talk of the Sound and against the City of New Rochelle in an ongoing dispute over claims by City officials that the City is not required to comply with recent changes to the New York State Freedom of Information Law concerning electronic records requests. For over a year now, City Manager Charles B. Strome has instructed his staff to play fast and loose with the New York State Freedom of Information Law.

As documented in the email excerpts below, in 2008, the City refused to honor FOIL requests via email from Talk of the Sound. In February 2009, the City agreed to honor FOIL email requests, in April they refused, in May they agreed, in October they refused and just this month, after we filed yet another complaint with the New York State Committee on Open Government, the City flipped again. During this time the City has honored email FOIL requests from other residents. The City has also improperly charged residents for fulfilling electronic records requests but has, so far, failed to audit their requests and return the money.

The advisory opinion from the New York State Committee of Open Government is a comprehensive refutation of the position taken by the City of New Rochelle. The Committee finds that despite claims to the contrary, the City of New Rochelle is (a) required to receive and respond to requests for records via email; (b) if the City of New Rochelle has the ability to receive and respond to requests via email, it is required do so; (c) an agency cannot require that a request be made on a prescribed form; (d) failure to complete a form prescribed by an agency cannot serve to delay a response or deny a request for records; (e) there is no basis for the claim that the City may charge fees for electronic records sent via email.

Below is the advisory opinion, in full, from the New York State Committee of Open Government which was sent to the City Manager yesterday (emphasis added).

TO: Mr. Robert Cox, Editor, New Rochelle=s Talk of the Sound

FROM: Camille S. Jobin-Davis

DATE: January 21, 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 Mr. Cox:

We are in receipt of your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the City of New Rochelle. Specifically, you indicated that the City now requires you to submit written requests for records on a prescribed form and will not respond to requests for records submitted via email. Further, you wrote that the City charges a per page photocopy fee for electronic records transmitted via email. In this regard, we offer the following comments.

First, as you know, in August of 2006, the Legislature amended ’89(3) of the Freedom of Information Law to require agencies to receive and respond to requests for records via email, as follows:

Ab) All entities shall, provided such entity has reasonable means available, accept requests for records submitted in the form of electronic mail and shall respond to such requests by electronic mail…@

Accordingly, it is our opinion, that if an agency such as the City of New Rochelle has the ability to receive and respond to requests via email, it is required do so.

Second, although an agency may, pursuant to ’89(3)(a) of the Freedom of Information Law, require that a request be made in writing, we do not believe that an agency can require that a request be made on a prescribed form. As required by ’89(3)(b) of the Freedom of Information Law, the Committee on Open Government has created model forms that may be used by the public when requesting records via email and by agencies for use in responding to those requests. Those forms, however, are merely recommended models or templates, and agencies may choose to adopt the form recommended by the Committee, alter it, or create its own form. Notwithstanding that guidance, there is nothing in the Freedom of Information Law that requires that a person seeking records must use an agency=s prescribed form. That being so, although use of the City of New Rochelle=s form may be of benefit to a person seeking City records, we do not believe that the City may require use of the City=s form, either in paper or via email.

We have also advised that a failure to complete a form prescribed by an agency cannot serve to delay a response or deny a request for records. A delay due to a failure to use a prescribed form might result in an inconsistency with the time limitations imposed by the Freedom of Information Law. For example, assume that an individual requests a record in writing from an agency and that the agency responds by directing that a standard form must be submitted. By the time the individual submits the form, and the agency processes and responds to the request, it is probable that more than five business days would have elapsed, particularly if a form is sent by mail and returned to the agency by mail. Therefore, to the extent that an agency’s response granting, denying or acknowledging the receipt of a request is given more than five business days following the initial receipt of the written request, the agency, in our opinion, would have failed to comply with the provisions of the Freedom of Information Law.

In sum, it is our opinion that the use of standard forms is inappropriate to the extent that it unnecessarily serves to delay a response to or deny a request for records.

With respect to the fees that an agency may charge for electronic records sent via email, we know of no basis in the law on which an agency could rely on to charge for such records. Section 87(1)(b)(iii) authorizes an agency to charge up to twenty-five cents for a photocopy as large as nine by fourteen inches, or in the case of other records, the actual cost of reproduction. When records are emailed, no photocopies are made, and therefore, in our opinion, the agency would have no basis to charge a photocopy fee.

On behalf of the Committee on Open Government, we hope that this is helpful.

CSJ:jm

cc: Rita Colangello, Acting City Clerk
Charles Strome III, City Manager
Captain Kevin Kealy

Camille S. Jobin-Davis
Assistant Director
Committee on Open Government
One Commerce Plaza
99 Washington Ave., Suite 650
Albany, NY 12231
Website: http://www.dos.state.ny.us/coog/index.html

Below is a partial set of email excerpts related to this complaint:

From: Robert Cox
Date: January 20, 2010 10:43:25 AM EST
To: Kathy Gilwit
Cc: Chuck Strome, Rita Colangelo, Camille (DOS) Jobin-Davis, Kevin Kealy

Kathy,

I was very gratified to read your email from last night which begins:

On Jan 19, 2010, at 8:43 PM, Gilwit, Kathy wrote:

Bob,
Your email is considered a FOIL request

I am so happy to see that you have now acknowledged that a public records request CAN be submitted via email. I trust this once and for all resolves this issue in the mind of the City Manager whom you represent and the rest of the staff at City Hall.

As you know, the amended version of FOIL as signed by Governor Paterson in August 2008 specially says that FOIL requests can be submitted via email, that responses to emailed requests should be made via email, that if electronic records are requested they are to be provided via email where possible, and so forth. The entire point of the amendment was to bring the FOIL law into the Internet age and move away from paper-based processes where possible.

As you also know, as the excerpts below demonstrate, both you and the City Manager have been confused on this point for quite some time. In 2008, I sought to file via email requests and Dorothy Allen, the former City Clerk, refused to honor those requests. When I brought this to the attention of the City Manager (and you) at our meeting in February of 2009, Mr. Strome told me that he wished to support media inquiries and that I need not even contact the City Clerk at all, that I need only email you a records request and you would gather the records and fulfill the request even though you are not the Records Access Officer for the City. The track record on that offer has been uneven, at best. In April, the City reversed course again, claiming that I must use a paper form and deliver it in person at the City Clerk’s office during normal business houses. When I challenged that, notified the NYS Committee on Open Government and requested a meeting with the City’s Corporation Counsel, the City again reversed course and agreed that records requests via email were valid requests. The City flipped again in October, claiming that I must fill out a “Request for Records Access” form and deliver that in person to the City Clerk at City Hall. I remember quite well how, when we met in your office in October to discuss public records regarding Domenic Procopio, the Chairman of the Municipal Civil Service Commission, who illegally pocketed over $10,000 in property tax exemptions including thousands for being a Combat Veteran when, in fact, Mr. Procopio never served in the military. At the time, you asserted that it was the City’s interpretation of the law was that if the City had a process that required a paper form it superseded the amended FOIL’s email request alternative even though you had previously agreed that the opposite was the case and even though the City had complied with FOIL requests via email. And all during this time the City continued to comply with FOIL requests made via email by other people (and I have evidence of this in case you might considering denying it) just not for me which suggests that the demand that I follow the antiquated process was selective and designed to inhibit my getting access to public records.

Compliance with FOIL is not a “favor” to be extended by the City Manager or his spokesperson. It is a right granted under New York State law.

At this point, I am not interested in looking backwards but forwards now that we are all in agreement that FOIL requests can be made via email. I trust, however, that you and Mr. Strome, can understand why, given the inconsistent application of FOIL by the CIty of New Rochelle, I am no longer interested in dealing with anyone other than a duly appointed Records Access Officer for the City of New Rochelle which I understand to include Rita Colangelo of the City Clerk’s office and Capt. Kealy of NRPD who are both copied on this email. When I seek a statement from a City official I will contact you but when I want to obtain public records I will contact designated Records Access Officers; if the request is not met I will appeal to the agency head, Mr. Strome as described under FOIL.

As to the specific issue of Jennifer Jones, I now have six different sources telling me that she has done work for the New Rochelle Youth Bureau. Given this, you might want to reconsider adopting the “wounded” tone. Further, as previously noted, had you bothered to READ the article where I related her connection to the Youth Bureau you would see that I have DEFENDED Ms. Jones, described her as someone who is well-regarded in the community and have said absolutely nothing that is critical of her or the Youth Bureau. The premise of your response is that there is NO CONNECTION between the Youth Bureau and Ms. Jones which, according to multiple sources including a prominent public figure with access to this information, is false. There IS a connection. Whether she is on the payroll of the City or paid as a private contractor or simply as a volunteer, she has, in fact, worked for the Youth Bureau, according to these sources. Specifically, I am told that she has been involved in developing programs for the Youth Bureau. Given the City’s track record with regard to lies told to cover up for Mr. Procopio, I am inclined to trust my sources over the City Manager’s office.

In either case, just to cover all bases, I went ahead and filed this morning a paper-based request with the City Clerk’s office to inspect all files and folders with the Youth Bureau related to Jennifer Jones or any related organization. Going forward, I will submit requests via email or using the paper-based form as it suits me.

Thank you so much for clearing this all up.

Robert Cox

Robert Cox: Managing Editor | Talk of the Sound
newrochelletalk@me.com | 914-500-8386 | twitter – talkofthesound

From: Kathy Gilwit
Subject: AMENDED FOIL REQUST + QUESTIONS related to Dominic Procopio
Date: October 23, 2009 4:29:34 PM EDT
To: Robert Cox

Hi Bob,
As you know from prior emails and conversations it’s the City’s policy for those requesting public records through FOIL to fill out a “Request for Records Access” form, which you refused to do at our meeting on Monday for your 10/9 request retroactively or for this new request below. (As noted in the opinion you emailed to me on 10/19, it is permissible for an agency to request a form as long as the FOIL timetable is not impeded by such a request, as you agreed during our meeting on Monday it had not been.)
Nonetheless, we are interpreting your records request below as a FOIL pertaining to the following documents. Please note however that we can fill requests for specific documents by name and not for “every record” “any property” or “related records”.
Regarding the two properties you referenced:

From: Kathy Gilwit
Subject: AMENDED FOIL REQUST + QUESTIONS related to Dominic Procopio
Date: October 19, 2009 9:59:08 AM EDT
To: Robert Cox

Bob,
Just to clarify our procedure, a FOIL request begins with filling out the application available in the City Clerk’s office.
I have that form for you to fill out regarding your request of 10/9 and will give you another for your records.
The copies of the property deeds are from the Westchester County Clerk’s Office site I referenced on Friday and your request should be directed to them if you want hard copies.
Regarding the records request below, please fill out a form and we will respond accordingly.
Thanks,
Kathy

From: Kathy Gilwit
Subject: RE: FOIL Request for NRPD
Date: April 8, 2009 3:31:38 PM EDT
To: Robert Cox
Cc: Chuck Strome

Hi Bob,
If you have a specific concern you are welcome to send it to myself or the City Manager, as Chuck mentioned at our meeting. However, in practice all FOIL requests are handled through the City Clerk’s office

654-2159.

Kathy

Mr. Strome,

She can call me at 914-325-4616 or email to propose a time to meet.

BTW, while I am perfectly willing to meet, is it necessary to meet in order for me to get the document I requested? I still do not have it.

Robert Cox
Managing Editor
New Rochelle’s Talk of the Sound

From: Robert Cox
Subject: Re:
Date: February 27, 2009 11:15:51 AM EST
To: Chuck Strome
Cc: Kathy Gilwit, Reilly, Kathy

On Feb 23, 2009, at 11:13 AM, Strome, Chuck wrote:
Mr. Cox – I suggest that a meeting be scheduled with you, me and the City’s marketing manager to discuss your concerns and attempt to resolve them for you. Upon receiving you ok to meet, I will ask my assistant to schedule such a meeting.

Chuck Strome
City Manager

On Jan 19, 2010, at 8:43 PM, Gilwit, Kathy wrote:

Bob,
Your email is considered a FOIL request, but as stated previously there are no records to offer: Jennifer Jones is not employed by the City and does not work for Kelly Johnson (he has a staff of three). We have no knowledge of any association with her for programming or services and quite frankly I have yet to find anyone who even knows who she is.

What made this particular issue so regrettable is that the Youth Bureau sets high standards, especially as an example for the youth it serves. Due to the publication and promulgation of unsubstantiated information they now have to needlessly refute an association with alleged impropriety.

From: Robert Cox
Sent: Tuesday, January 19, 2010 4:45 PM
To: Gilwit, Kathy
Subject: Fwd: Jennifer Jones of New Rochelle Youth Bureau Caught up in Paterson “Scandal”

Kathy,

To be clear, I found it amusing how quickly you were able to provide this information in light of past failures to respond to me on these sorts of questions.

As you seem to have information about Ms. Jones so readily at hand let me try this another way. Is there any association between the New Rochelle Youth Bureau and Jennifer Jones and/or any organization which Jennifer Jones is associated with? Has she ever done any programming for the Youth Bureau? Has she or an organization she is associated with ever been paid for providing services to the City of New Rochelle?

I will submit a FOIL request tomorrow.

Thanks

Bob Cox

Begin forwarded message:

From: Robert Cox
Date: January 19, 2010 12:45:24 PM EST
To: “Gilwit, Kathy”
Subject: Re: Jennifer Jones of New Rochelle Youth Bureau Caught up in Paterson “Scandal”

Amusing.

On Jan 19, 2010, at 12:32 PM, Gilwit, Kathy wrote:

Bob,
Jennifer Jones is not employed by the Youth Bureau or the City of New Rochelle.
(For what it’s worth, per the internet White Pages, she is listed as a Mount Vernon resident and as such would not even qualify to be an employee of the Youth Bureau.)
Please correct the inaccurate information you have posted to your website immediately and thoroughly. As it has also been picked up by the New York Post we will advise them of the error as well.
Thanks,
Kathy

From: Robert Cox
Sent: Monday, January 18, 2010 1:38 PM
To: Gilwit, Kathy
Subject: Jennifer Jones of New Rochelle Youth Bureau Caught up in Paterson “Scandal”

Kathy,

I have a story up on Jennifer Jones…

Jennifer Jones of New Rochelle Youth Bureau Caught up in Paterson “Scandal”
http://www.newrochelletalk.com/node/1435

From talking to my wife, to others in City Hall and others in the community it appears she is being treated VERY unfairly here.

I want to gather detailed facts about her and push them out into the blogs and mainstream media so that a more accurate portrayal of her will (hopefully) emerge.

The JN took down their salary dbase. Can you provide me the FOILable info on her job title, salary and whatever else you have.

I would REALLY like to get a family photo as that would be the best refutation of all.

Bob Cox