Daily Archives: August 16, 2007

Appealing the latest FOIL rejection

For my column this week, I am providing the full text of the latest FOIL appeal that I filed this week with the Town of Geneseo. I think the letter speaks for itself.
Mr. Weston Kennison
Records Access Appeals Officer
Town of Geneseo

Dear Mr. Kennison:

I am writing to appeal the Town’s recent denial of access to public records related to Newman Development Group’s Gateway Town Center proposal.

On July 11, 2007, I filed a Freedom of Information Law (FOIL) request for all correspondence between Town Attorney James Coniglio and Town elected officials and representatives of Newman Development Group and its development partners. The impetus for this request was a statement by Mr. Coniglio in the Livingston County News (June 28, 2007) that the Town had received and rejected criticisms of the Planned Development District (PDD) law from Newman.

In response to this request, on August 10, 2007, the Town stated that no documents other than those provided to me by an earlier FOIL request could be found. However, my previous requests produced only a single item of correspondence (a March 22, 2005 letter from James Coniglio to Tom Ferrera of Ferrera/Jerum) between representatives of the Town and representatives of Newman prior to the passage of the PDD law in July 2005. That letter had nothing to do with the PDD law.

The absence of documents transmitted between the Town and Newman related to the PDD law creates a conundrum, particularly in the context of Mr. Coniglio’s claim that communications about the PDD law were transmitted between the Town and Newman. For Newman even to be aware of the PDD law would seem to require that the draft law – which was not yet in the public domain – was somehow transmitted to them, yet no record of such a transmission exists. For Newman to have offered its response to the law would also require some transmission. Even a phone conversation would produce notes or some other written record. Yet, no such records appear to exist.

Also, reviewing the billing records of Underberg & Kessler indicates that development of PDD regulations began in March 2005. Yet, these records indicate that there was no phone, written, or personal contact with Ken Kamlet or other employees of Newman prior to April 21, 2005. The “correspondence to and from K. Kamlet” indicated by the billing records to have occurred on that date identified in a previous FOIL request as missing, probably destroyed, and not required to have been retained because of its routine or trivial nature. No other contact with Mr. Kamlet is recorded until his appearance at the Town’s public hearing on the PDD law on June 9, 2005, at which time he indicated his familiarity with and support of the PDD law.

It is simply inconceivable to me that there is not a single item of correspondence between Newman and the Town related to the drafting or content of the PDD law. Further, it is clear under state law that any such correspondence, pertaining as it does to a matter of public policy, must be retained permanently. The result is a conclusion that the Town is either withholding records in violation of FOIL or has destroyed significant public records in violation of the Arts and Cultural Affairs Law (Article 57A, the Local Government Records Law).

Under these circumstances, I request that the Town ask Underberg & Kessler to undertake an additional search of its records for any documents relevant to my July 11 request. If no relevant documents are found, please provide certification of the completion of a diligent search and the details of that search. Further, please provide any clarification of the circumstances under which the PDD law was made available to Newman, the form in which Mr. Kamlet’s or Newman’s comments were received, and the disposition of those comments.

Also, my July 11 request included a request for the “contents of the ‘client files’ developed by Underberg & Kessler for the Town of Geneseo related to the Planned Development District law or Newman Development Group.” Your response denies my request for failure to “reasonably describe the nature of the records sought.” My use of the term “client files” was taken from Underberg & Kessler attorney Ron Hull’s claim, in the context of PDDG’s previous Article 78 litigation against the Town, that he had searched UK’s “client files” for records requested in a previous FOIL request. I do not know anything more about the nature or content of these client files, but I believe under the circumstances that the description I have provided should be clear to Underberg & Kessler.

Please provide your response to this appeal with ten business days.


Bill Lofquist