Category Archives: FOIL

Renewing our request to be on the agenda

Recently, Please Don’t Destroy Geneseo sent a letter to Planning Board Chairman Dwight Folts asking to be allowed time to speak at the September 10 meeting to rebut statements made at the previous meeting about the propriety of PDDG’s access to the DEIS in the Newman matter. In response we got the following statement from Chairman Folts:

“There is no provision under SEQRA, the Town Zoning Code or the Open Meetings Law that requires the Planning Board to provide PDDG time to speak on the Newman application at the 9/10 agenda, since it is not a scheduled public hearing. You are most certainly aware that you will have time to speak and submit written comments during the public hearing(s) to be conducted after the Planning Board deems the DEIS complete.”

In response we have sent the chairman the rep0nse below renewing our request to be heard:

Dear Dwight,

Thank you for contacting us regarding our request to appear on the agenda at Monday’s Town Planning Board meeting.

We would like to clarify that PDDG”s request to speak at the meeting was not to address the issue of the completeness of the DEIS, much less the findings of the DEIS that we understand will eventually be taken up at a future public hearing. Our request was to address the board on the applicability of the Freedom of Information Law to the DEIS process and respond to the statements made by Newman counsel Tom Greiner, the advice given by the board’s counsel, Joe Picciotti, and your ruling on the status of documents produced by the applicant in this matter, all of which we strongly dispute.

Since the statements by Mr. Greiner, Mr.Picciotti and yourself all left the implication that PDDG had done something improper and were made, not only to the board, but also to a room full of citizens, and were subsequently reported in the press, we feel it is only fair that we be given an opportunity to clear the record.

As stated in the opinions of the NYS Committee on Open Government, which we sent you last week, the DEIS itself and all correspondence concerning the DEIS sent by the applicant or its agents either directly to the board or to the board’s consultants are public records and must be disclosed under the Freedom of Information Law.

Our review of the law indicates that the position taken by your counsel that correspondence with the Board regarding the completeness decision is protected from disclosure by some sort of “deliberative process” exemption is directly at odds with these opinions and the case law regarding FOIL. In our letter we asked that your attorney provide any legal rule or precedent that would substantiate his opinion. The fact that he has not produced any and that you subsequently did respond to our FOIL by providing a previously unknown memo from APD about the DEIS would indicate that there is no such precedent.

This needs to be clearly stated at your meeting to undo the damaging implication left from the last meeting that there was anything improper in PDDG getting access to these records.

We further understand that questions have also been raised about PDDG’s right to send comments to members of the planning board and the board’s consultants about our concerns with the completeness of the DEIS and other issues. Once again, we believe that these communications are entirely proper and fully protected by the law. While there are good legal and ethical reasons to regulate contacts between parties that have a proposal under review before a Board and the Board itself, the logic of those regulations does not extend to communications with the public. As citizens of the Town of Geneseo, the Planning Board is our representative in this matter. Our right to communicate with the Board on matters of public concern is protected.

In our letter we also requested that the question of an ethical code for the planning board be taken up as soon as possible. We believe that the appearance of collusion by way of private communications between the applicant or its agents and individual members of the board is dangerous to the integrity and public confidence in the work of your board. The failure to properly interpret and follow the requirements of the Freedom of Information Law in this matter to date has allowed that appearance to be created.

We note that the recently disclosed APD memo had not been shared with other board members until after our FOIL request brought it to light. It further appears that there is a pattern in which new material is given to the board at the last possible moment before meetings, or even at the meetings, with no opportunity for the board to properly review the material. This practice raises serious concerns about the fairness of the process and the ability of our representatives to take the legally required “hard look” at issues before deciding them. We would also like to address these issues in our comments to the board.

We agree that there is no law that requires you to allow us on the agenda, on the other hand we believe the converse of your statement is also true: that there is no provision under SEQRA, the Town Zoning Code or the Open Meetings Law that prohibits the Planning Board from providing members of the public time to speak. Newman has certainly had plenty of time to address the Board, and has used it to cast aspersions on our organization. Simple fairness would indicate that we be given the opportunity to rebut their statements.

We hereby renew our request to be allowed time to address these issues at the meeting Monday.

Sincerely

Bill Lofquist
Corrin Strong

Please Don’t Destroy Geneseo

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.

Sincerely,

Bill Lofquist