Recently we FOILed a report for monies paid to the town for ALL FOILed documents since 2006. The report made it quite clear that we were being monitored. Other FOIL requests listed on the report from the Town Clerk were not noted in the town attorney's invoices. That is, not until the Observer Dispatch started nosing around the Business Park documents in 2009; then they were apparently placed on the "watch list" as well.
In reviewing Attorney Green's invoices from January 2006 to June 2009, it became apparent that sometimes there were two or three telephone consults a day between the town clerk and/or town personnel and the town attorney regarding FOILed documents; often times followed up by billings for an email sent to the same person he had a telephone conference with.
In February 2008, Attorney Green billed the town for two (2) hours ($300 total) to formulate a F.O.I.L. policy and prepare a response to a F.O.I.L. appeal. In March 2008, Attorney Green even billed the town for his attendance at a free seminar at SUNYIT where Robert Freeman, Executive Director of the Committee on Open Government was the guest speaker; in April 2008, Attorney Green arranged to have Robert Freeman hold an hour and a half seminar for town employees to discuss F.O.I.L. and Open Meetings Law. However, even after Attorney Green billed the town for these informational seminars and for developing a FOIL policy, he still monitored our FOIL requests. Apparently, Attorney Green felt the town clerk needed further guidance when it came to our requests.
All government entities [including schools] are supposed to have at least one Records Access Officer to handle requests for copies of public documents. In the case of the Town of New Hartford, the Records Access Officer is the Town Clerk. It is her job to determine if a document is FOILable and to see to it that a copy of the document is available in a timely fashion in accordance with the NYS FOI Law. This is not rocket science and the New Hartford town clerk has been on the job for many years so she should be very familiar with what is FOILable and what is not. If she is uncertain, she can always contact Robert Freeman, Executive Director of the Committee on Open Government. Mr. Freeman is available for guidance to anyone...free of charge.
Admittedly, there may be a few instances where the town clerk might want to involve the town attorney, but over $12,000 of time billed to the town just to monitor Freedom of Information requests? That is roughly how much Attorney Green billed the Town of New Hartford to deal with FOIL requests that were basically from Concerned Citizens. Documents that should have been readily available to anyone who asked and in some cases perhaps should have been made available at town board meetings as handouts.
We weren't asking for anything that should have normally caused concern...except of course when we wanted information on the Alessi case or when we inquired as to the whereabouts of a 1997 town van that seemed to disappear, or the time we wondered why town license plates were still on a van and several town trucks located on private property after they were sold to a private individual [in some cases without prior town board approval of the sale].
According to the FOI Law:
"Record" means any information kept, held, filed, produced or 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.Sounds pretty clear to us...basically almost anything is FOILable as soon as it becomes the property of the town [including Attorney Green's invoices] with a few exceptions:
Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that:So the question is...was Attorney Green acting as town attorney to insure that nothing was disclosed to Concerned Citizens that could be determined to be a private or legal matter as defined by the Freedom of Information Law [a determination that should for the most part be routine for a town clerk with many years of experience] or was he working as head of the New Hartford Republican Committee in an attempt to cover his own A$$ as he worked [and billed the town] to further the agenda of a select few "friends" of the Republican Party?
(a) are specifically exempted from disclosure by state or federal statute;
(b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article;
(c) if disclosed would impair present or imminent contract awards or collective bargaining negotiations;
(d) 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;
(e) are compiled for law enforcement purposes and which, if disclosed, would:
i. interfere with law enforcement investigations or judicial proceedings;
ii. deprive a person of a right to a fair trial or impartial adjudication;
iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or
iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures;
(f) if disclosed could endanger the life or safety of any person;
(g) are inter-agency or intra-agency materials which are not:
i. statistical or factual tabulations or data;
ii. instructions to staff that affect the public;
iii. final agency policy or determinations; or
iv. external audits, including but not limited to audits performed by the comptroller and the federal government; or
(h) are examination questions or answers which are requested prior to the final administration of such questions;
(i) if disclosed, would jeopardize an agency’s capacity to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures; or
(j) are photographs, microphotographs, videotape or other recorded images prepared under authority of section eleven hundred eleven-a of the vehicle and traffic law.