Next week is Sunshine Week and so a good time to remind readers about two of the most important laws in New York State: The Open Meeting Law and the Freedom of Information Law.
When the American colonies proclaimed their desire (and right) to separate from England in 1776, they listed among their grievances against King George III, his abuse of public meetings and public records:
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
Two of the major differences between the England of King George III and the United States of America founded under the U.S. Constitution is the right of people to observe their legislature conducting its business (in England the public was not allowed to view proceedings in Parliament) and to review public documents detailing the nature of their business.
Many have fought and died to protect your right to witness assemblies of your elected officials conducting public business and to obtain for review and comment the records produced by your governments at every level.
The level of ignorance of public officials in New Rochelle with regard to requirements of our Open Meeting Law is staggering which has led to the wanton abuse of “executive session” to hide from public view discussions among a quorum of elected officials conducting the public’s business.
For example, the New Rochelle City Council has routinely been called into executive session by Mayor Noam Bramson to discuss “matters of real estate” when the discussion concerned projects such as Echo Bay, LeCount Square and, more recently, the Main Street Core Project. There is an exception in the OML under which a body may go into executive session to discuss a matter of real estate but the exception is granted for the public benefit — that information about a desire by the body to buy or sell property might not become known by land speculators thus driving the price up or down at the expense of taxpayers. In New Rochelle, Mayor Bramson has frequently invoked executive session to hide from the public a free and open debate on projects from favored developers like Forest City Ratner, Capelli Enterprises and Albanese not for the benefit of citizens but for his own personal, political benefit and for the benefit of the developers. In the case of Capelli Enterprises, there were numerous executive session meetings to discuss the LeCount Square MOU, a deal in which no public property was involved and under which the city would neither buy nor sell property.
On the school board, board of education presidents have, for decades, used executive session or even illegal “retreats” to discuss school budgets, taxes and much more to hide discussions about how two-thirds of New Rochelle tax dollars are spent. There has, however, been marked improvement over the past five years starting under the leadership of board president Sara Richmond and continuing under current board president Chrisanne Petrone. Tape of all meetings are put on TV and the district web site and the budget review meetings are broadcast live. Still, there is an underlying ethos to try and justify keeping the public out rather than finding more ways to bring them in that lingers and will likely continue so long as Jeffrey Kehl is the lawyer for the district.
From talking to many elected officials in New Rochelle it is clear that few have even read the New York State Open Meeting Law. Talk of the Sound has long held that every person elected to the New Rochelle Board of Education, City Council or appointed to a public committee such as the IDA, Civil Service Commission, Zoning, and Planning should be required to be an expert on the New York State Open Meeting Law. After all, each of these people take an oath to uphold this very law and it is one of the few that directly speaks to their role as a member of a public body. Despite this, few, if any, of these elected officials have shown the slightest interest in OML. For those that are familiar with OML, the interest of some appears to stem more from trying to use the law to craft excuses to circumvent the law than in upholding both the letter and spirit of the law.
An example of this is the infamous “two by two” meetings under which City Council members agree to a series of private meetings with developers like Forest City and Albanese in a format expressly designed to circumvent the OML by avoiding a quorum thus, in and of itself, making the “two by two” meetings illegal. Despite, this Council Members from all parties have continued to willingly participate in the illegal meetings designed for the benefit of wealthy developers and that Mayor who seeks and receives their financial support for his campaign fund, directly and through the the New Rochelle and Westchester Democratic Party.
Members of the Ratner family (Forest City) have contributed to the Mayor, as have members of the Jerome family (Monroe College). Monroe has received special tax deals from the New Rochelle IDA. Joe Apicella routinely appears before the City Council and NRIDA as spokesman for Capelli Enterprises while also serving as Vice Chairman of the Westchester County Democrat Party. Over the course of his political career Bramson has raised over $1 million for his personal campaign funds, much of it coming from people doing business with the City of New Rochelle or receiving favors from Bramson including appointments to various public and special committees.
The most common misperception among these elected officials about OML is that we have in this country something akin to the Official Secrets Act in the United Kingdom. All but a few elected officials in New Rochelle believe that simply because a discussion takes place in executive session that it is illegal to make public any aspect of that executive session discussion.
Speaking from experience, as a candidate for elected office in New Rochelle, I was specifically warned that if I were elected and then published information gleaned from an executive session that it would be grounds for my removal and that I might face legal action.
That is pure, unadulterated balderdash.
The law is quite clear. Nothing discussed in executive session is required to be kept secret simply because it is discussed in executive session. What the law says is that there are valid reasons why a public body might go into executive session (e.g., to discuss a response to a lawsuit, to discuss a personnel matter, to discuss a police informant, etc.) and thus meet in a quorum out of public view for the limited purpose of discussing a particular matter. The law is silent on what members of the body may do after the meeting is over.
Robert Freeman, the Executive Director of the State of New York Committee on Open Government addresses this issue a few months ago at an event in Larchmont hosted by Assemblyman George Latimer.
In the video, Freeman explains that information can only be considered privileged by statute. A public body such as a school board or city council may not simply “declare” information to be “secret”. Thus, a discussion about the employment of a particular individual is not de facto protected information and may be made public by anyone in the meeting, however, under HIPPA, no information about that employees medical condition may be disclosed. So, if the executive session is to discuss firing someone for stealing that can be made public after the meeting but if the person is being fired due to a drug or alcohol problem then the reason for their firing, a medical condition, may not be disclosed.
Regarding public records, the track record in New Rochelle on the Freedom of Information Law (FOIL) has been mixed.
The New Rochelle Police Department has been exceptional in providing access to public records. The department routinely provides incident report data for inclusion in our SpotCrime crime mapping software, access to mug shots, arrest reports, incident reports and more. The department is a model for any state agency in how to process public records requests under NYS FOIL.
The City of New Rochelle is very good but suffers from the general incompetence of City Clerk Bennie Giles who appears to be belligerently uninformed regarding his obligations under the New York State Freedom of Information Law. Giles routinely fails to acknowledge FOIL requests within 5 business days, as required under FOIL. He routinely fails to process FOIL requests electronically. A state agency may not charge for a fee for providing electronic documents as email attachments and must do so when the records are available in electronic form and the request is made by email. Even when Giles eventually does acknowledge a FOIL request, he routinely fails to deliver the records within the required 22 business days and it is quite common to have to “fence” with Giles and make repeated requests after he has claimed to fulfilled a request when, in fact, he has not. It appears that often this is willful on his part and intended to, like King George III, “fatiguing them into compliance with his measures”.
The City Clerk is a patronage position, appointed by the City Council (i.e. Noam Bramson). The City would be far better served if a more competent staff member was designated as the Records Access Officer and allowed to manage FOIL requests without the involvement on Giles. In fact, the real solution is to change the City Charter to make the City Clerk position a non-political position where the City Clerk works directly under the City Manager and can be hired and fired by the City Manager.
The good news for residents is that if the City Clerk fails to acknowledge an email request in 5 days (by email reply) residents have the right to appeal to the “head of agency” on the grounds that Giles failure to reply constitutes a “constructive denial” of the FOIL request. The head of agency in New Rochelle is City Manager Charles Strome who is fair, prompt and comprehensive in responding to FOIL appeals. There is not a single case I can think of where, once Strome, got involved, that the records were not produced and done so promptly.
The City School District of New Rochelle is another story altogether. You were more likely to get access to records from the KGB in the old Soviet Union than get records from the New Rochelle Board of Education. This is not a reflection of staff but comes straight from the top. Schools Superintendent Richard Organisciak, and his “partner in crime”, Jeffrey Kehl, are the living embodiment of King George III. The standing position of the district is that no one is entitled to know anything about anything. Given the level of corruption that occurs within the district this should come as no surprise to anyone. That the elected members of the New Rochelle Board of Education go along with the shenanigans of Organisciak and Kehl on FOIL and OML is shameful.
If you wish to obtain public records covered under the New York State Freedom of Information Law from an agency in New Rochelle (City of New Rochelle, New Rochelle Police Department or City School District of New Rochelle) please note the following.
1. Always make your request via email. It is faster, cheaper and email requests are required to get an email reply along with attached documents (for free) where available. Requests by regular mail are slower and can be used to justify a paper document reply under which you may be charged 25 cents per page.
2. Be clear in your email.
SUBJECT LINE should read “PUBLIC RECORDS REQUEST — with a brief note on subject”.
The BODY of the email should begin with a clear statement of purpose: “This is a public records request.”
This should be followed by a reasonable description of the records you seek. For a simple request like an arrest report, you can ask to obtain the document. For more complex requests you will want to “review” the entire set of records to find what you want. This means you can set up an appointment to sit down with all of the related files and documents and go through them at your own pace. You are also allowed to bring your own copying equipment with you so long as it is not obtrusive. That means you can bring a digital camera and simply take photos of documents that interest you. This is much faster and free as opposed to 25 cents per page. Be aware that Mr. Giles has attempted in the past to prevent taking photos of documents but is legally barred from doing so. If he makes such a claim to you just ask him to take it up with Corporation Counsel (the city’s lawyer) and then ignore him.
BODY should continue “I would like to [obtain/review] all file and folders regarding [briefly, reasonably describe the records you seek].”
FOOTER. At the end of the email add the following:
“Where possible I would like records in electronic format. If possible, I would like the electronic documents converted into standard Microsoft Office format (Word, Excel, etc.). I would like all communications including the delivery of documents to take place via email as much as is possible based on the nature of the available records.. I would like the Records Access Officer to certify that the records are genuine. If the documents only exist in paper form I am willing to pay. If the cost of converting the documents to a standard electronic format or making photos copies exceeds $20.00 I would like prior notification of the estimated cost to comply with this records request.”
3. Email FOIL requests and appeals to the appropriate person (you will not need to appeal with Kealy, there is little point in appealing to Organisciak but it is required for protocol reasons). Always copy Robert Freeman on appeals.
New Rochelle Police Department
Captain Kevin Kealy
Records Access Officer
Kkealy@ci.new-rochelle.ny.us
City of New Rochelle
Bennie Giles
City Clerk
bgiles@ci.new-rochelle.ny.us
Charles Strome (FOIL Appeals)
City Manager
Cstrome@ci.new-rochelle.ny.us
City School District of New Rochelle
Liz Saraiva
School District Clerk
LSaraiva@newrochelle.k12.ny.us
Richard Organisciak (FOIL Appeals)
New Rochelle Schools Superintendent
rorganisciak@newrochelle.k12.ny.us
New York State Committee on Open Government
Robert Freeman
Executive Diretor
coog@dos.ny.gov
4. In the case of Mr. Giles, you can safely assume he will fail to follow the law so just wait until the sixth day and file an appeal with Mr. Strome.
In sending that email…
SUBJECT LINE: This is an appeal of a constructive denial of my public records request for X
Dear Mr. Strome,
I submitted a Public Records Request for X to the City Clerk on [insert date]. It has been more than 5 days and I received no acknowledgement of my request. Under NYS FOIL this constitutes a constructive denial of my request. I appeal to you as head of agency to overturn this decision of the City Clerk and arrange so that I may have access to/obtain the records that I seek.
RELATED:
New York State Committee on Open Government
New York State Freedom of Information Law
New York State Open Meeting Law