Daily Archives: September 19, 2007

Opportunity knocks and the town refuses to answer

After the Town Planning Board’s August 27 meeting, I had the chance to ask Newman Development’s attorney and “team” leader Ken Kamlet whether he would send me copies of the missing documents we have been trying so hard to obtain. His answer surprised me.

You may recall that nearly a year ago, I submitted a Freedom of Information Law (FOIL) request for several dozen documents related to Newman’s Big Box proposal. Among those were approximately a dozen items of correspondence between Newman and its partners and the Town.

Though we know that the documents existed – they are referred to in the billing records of Underberg & Kessler, the Town’s attorneys – my request, subsequent appeals, and even a Article 78 lawsuit against the Town failed to produce their disclosure.

The problem, the Town said, is that it destroyed the documents, which it characterized as routine and trivial communications that it was allowed to destroy. Since it can’t produce what no longer exists, and since the Town’s claim that it was allowed to destroy the documents can’t be tested without knowing the contents of the documents, the matter reached an impasse. Our effort to break this impasse by asking the Court to order a more thorough search of Town records was rejected by Judge Anne Marie Taddeo.

That would seem to leave only one route to get the documents, which brings us back to August 27. As a private, non-governmental party, Newman is not subject to FOIL. It can’t be required to produce its communications with public officials; only public officials can be so required. However, it may very well still have those communications and it certainly may provide them voluntarily.

So I asked, first in writing and then in person, whether Newman would share its copies of the documents. Doing so would be an enormous act of goodwill on Newman’s part. It would answer questions about the Town’s relationship with Newman (remember that a sworn statement has been made that the Town acknowledged that Newman wrote the PDD law.) It would bring an end to costly and contentious litigation with the Town.

I received no response to my written request, so I didn’t expect much when I posed the question directly to Mr. Kamlet. That’s why I was surprised when he said that he would provide the documents to the Town if they requested them.

Hearing the sound of opportunity knocking, I immediately contacted the Town to encourage them to follow up on Newman’s offer. Weeks have passed. The Town Board has met. I have been told that they discussed the issue at their meeting, with Supervisor Kennison indicating that the matter is being reviewed by counsel. I have received no response from the Town.

At this point in the process, I won’t bother to feign outrage or indignation at the Town’s apparent indifference to this opportunity. I would have to be naïve to believe that the Town has any real interest in the public knowing more about its relationship to Newman.

Three things could happen if Newman did provide the documents; two of them are bad for the Town and the third is by now almost completely implausible. First, the documents could reveal close ties between Newman and the Town in writing the PDD law and reviewing Newman’s proposal.

Short of that, they could contain the type of information that, without presenting evidence of collusion, could prove that the Town’s attorneys destroyed significant documents in violation of state law. Or, perhaps we’ve got this all wrong and the documents contain the type of truly trivial information that would allow them to be destroyed, but if so, why not ask Newman to release them?

So there it is. Newman has the documents. The Town could ask for them. It hasn’t. Go figure.

Perhaps a future Town administration can follow up on Newman’s offer. Despite the Town’s full court press to expedite approval of Newman’s application (most recently by trying to gain acceptance of an obviously incomplete DEIS), it appears likely that Newman’s application will still be pending when the new board takes office on January 1.