Foil a la Newburgh

Newburgh Advocate — Mon, 28 Dec 2009 21:41:00 +0000

From: Jane Johnston
Sent: Thursday, June 12, 2008 4:26 PM
To: McKean, Elizabeth
Subject: FOIL Request

Records Management Administrative Office
Elizabeth McKean, RMO
123 Grand Street
Newburgh, NY 12550

REQUEST FOR RECORDS BY EMAIL

Dear Records Access Officer:

(1) Please email the following records if possible:
1.1. Consultant contracts, if any, between William Loewenstein and the City of Newburgh for the years 1985 through 2008.
1.2. Consultant contracts, if any, between Community Initiatives Development Corporation and the City of Newburgh for the years 1985 through 2008.
1.3. Consultant contracts, if any, between the National Development Council and the City of Newburgh for the years 1985 through 2008.
1.4. Invoices submitted by the National Development Council to the City of Newburgh for the years 1985 through 2008.
1.5. Invoices submitted by William Loewenstein to the City of Newburgh for the years 1985 through 2008.
1.6. Invoices submitted by Community Initiatives Development Corporation to the City of Newburgh for the years 1985 through 2008.
1.7.a. Disclosure Statement of William Hauser dated on or around January 29, 2006 regarding Den Cass.
1.7.b. Any other disclosure statements of William Hauser from the time period 2002-2007.
1.8. Any disclosure statements of William Loewenstein from the time period of 1985 through 2008.

(2) If all the requested records cannot be emailed to me, please inform me by email of the portions that can be emailed and advise me of the cost for reproducing the remainder of the records requested ($0.25 per page or actual cost of reproduction).

(3) If the requested records cannot be emailed to me due to the volume of records identified in response to my request, please advise me of the actual cost of copying all records onto a CD or floppy disk.

(4) If my request is too broad or does not reasonably describe the records, please contact me via email so that I may clarify my request, and when appropriate inform me of the manner in which records are filed, retrieved or generated.

If it is necessary to modify my request, and an email response is not preferred, please contact me at the following telephone number: (845) xxx-xxxx.

If for any reason any portion of my request is denied, please inform me of the reasons for the denial in writing and provide the name, address and email address of the person or body to whom an appeal should be directed.

A. Jane Johnston

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From: McKean, Elizabeth

Fri, Jun 13, 2008 at 9:49 AM

To: “Vitek, Lorene”

Cc:

Subject: FOIL Request – City of Newburgh

Lori,

As City Clerk and FOIL officer, would you please process Jane Johnston’s FOIL request below, distributing the requests to the relevant departments.

Thank you!

Betsy

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From: Jane Johnston

Mon, Aug 18, 2008 at 11:51 AM

To: “McKean, Elizabeth”

Cc: “Vitek, Lorene”

Subject: FOIL Request – City of Newburgh

Dear FOIL officer:

As of June 12, 2008, when I made my initial request, I have received no further communications regarding my FOIL request apart from the message below.

According to FOIL, I should have received a response within five business days:

§89. General provisions relating to access to records; certain cases.

3. (a) Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgment of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied, including, where appropriate, a statement that access to the record will be determined in accordance with subdivision five of this section. An agency shall not deny a request on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing or on any other basis if the agency may engage an outside professional service to provide copying, programming or other services required to provide the copy, the costs of which the agency may recover pursuant to paragraph (c) of subdivision one of section eighty-seven of this article. An agency may require a person requesting lists of names and addresses to provide a written certification that such person will not use such lists of names and addresses for solicitation or fund-raising purposes and will not sell, give or otherwise make available such lists of names and addresses to any other person for the purpose of allowing that person to use such lists of names and addresses for solicitation or fund-raising purposes. If an agency determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part. Upon payment of, or offer to pay, the fee prescribed therefor, the entity shall provide a copy of such record and certify to the correctness of such copy if so requested, or as the case may be, shall certify that it does not have possession of such record or that such record cannot be found after diligent search. Nothing in this article shall be construed to require any entity to prepare any record not possessed or maintained by such entity except the records specified in subdivision three of section eighty-seven and subdivision three of section eighty-eight of this article. When an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so. When doing so requires less employee time than engaging in manual retrieval or redactions from non-electronic records, the agency shall be required to retrieve or extract such record or data electronically. Any programming necessary to retrieve a record maintained in a computer storage system and to transfer that record to the medium requested by a person or to allow the transferred record to be read or printed shall not be deemed to be the preparation or creation of a new record.

(b) All entities shall, provided such entity has reasonable means available, accept requests for records submitted in the form of electronic mail and shall respond to such requests by electronic mail, using forms, to the extent practicable, consistent with the form or forms developed by the committee on open government pursuant to subdivision one of this section and provided that the written requests do not seek a response in some other form.

I hereby request a response to my FOIL request.

Sincerely yours,

A. Jane Johnston

[Quoted text hidden]

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From: McKean, Elizabeth

Tue, Aug 19, 2008 at 8:18 AM

To: Jane Johnston

Subject: FOIL Request – City of Newburgh

Jane,

Lori Vitek is the FOIL Officer, and she will be in touch with you; she is working with the Corporation Counsel.

Betsy

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From: A. Jane Johnston

Sent: Monday, August 18, 2008 12:59 PM

To: dos.dl.InetOpenGov

Subject: what to do about a FOIL request that’s been ignored

I filed a FOIL request via email on June 12, 2008, to the City of Newburgh and have heard nothing back since then. I just sent a request for a response and quoted the section 89, paragraph 3, about “within 5 business days” in hopes that this will garner a response. What recourse do I have, though, apart from continued requests for a response back?

Kind regards,

A. Jane Johnston

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From: Mercer, Janet (DOS)

Wed, Aug 20, 2008 at 10:16 AM

To: “A. Jane Johnston”

Cc: lvitek@cityofnewburgh-ny.gov

Subject: what to do about a FOIL request that’s been ignored

Dear Ms. Johnston:

I have received your inquiry concerning your inability to obtain a response to your Freedom of Information Law request directed to the City of Newburgh.

The Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. Specifically, (89(3) of the Freedom of Information Law states in part that:

“Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied…(

It is noted that new language was added to that provision in 2005 stating that:

(If circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part.(

Based on the foregoing, an agency must grant access to records, deny access in writing, or acknowledge the receipt of a request within five business days of receipt of a request. When an acknowledgement is given, it must include an approximate date within twenty business days indicating when it can be anticipated that a request will be granted or denied. However, if it is known that circumstances prevent the agency from granting access within twenty business days, or if the agency cannot grant access by the approximate date given and needs more than twenty business days to grant access, it must provide a written explanation of its inability to do so and a specific date by which it will grant access. That date must be reasonable in consideration of the circumstances of the request.

The amendments clearly are intended to prohibit agencies from unnecessarily delaying disclosure. They are not intended to permit agencies to wait until the fifth business day following the receipt of a request and then twenty additional business days to determine rights of access, unless it is reasonable to do so based upon (the circumstances of the request.( From my perspective, every law must be implemented in a manner that gives reasonable effect to its intent, and I point out that in its statement of legislative intent, (84 of the Freedom of Information Law states that “it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible.” Therefore, when records are clearly available to the public under the Freedom of Information Law, or if they are readily retrievable, there may be no basis for a delay in disclosure. As the Court of Appeals, the state(s highest court, has asserted:

“…the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom. By their very nature such objectives cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception. The phrase ‘public accountability wherever and whenever feasible’ therefore merely punctuates with explicitness what in any event is implicit” [Westchester News v. Kimball, 50 NY 2d 575, 579 (1980)].

In a judicial decision concerning the reasonableness of a delay in disclosure that cited and confirmed the advice rendered by this office concerning reasonable grounds for delaying disclosure, it was held that:

(The determination of whether a period is reasonable must be made on a case by case basis taking into account the volume of documents requested, the time involved in locating the material, and the complexity of the issues involved in determining whether the materials fall within one of the exceptions to disclosure. Such a standard is consistent with some of the language in the opinions, submitted by petitioners in this case, of the Committee on Open Government, the agency charged with issuing advisory opinions on FOIL((Linz v. The Police Department of the City of New York, Supreme Court, New York County, NYLJ, December 17, 2001).

If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time beyond the approximate date of less than twenty business days given in its acknowledgement, if it acknowledges that a request has been received, but has failed to grant access by the specific date given beyond twenty business days, or if the specific date given is unreasonable, a request may be considered to have been constructively denied [see (89(4)(a)]. In such a circumstance, the denial may be appealed in accordance with (89(4)(a), which states in relevant part that:

“…any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought.”

Section 89(4)(b) was also amended, and it states that a failure to determine an appeal within ten business days of the receipt of an appeal constitutes a denial of the appeal. In that circumstance, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules.

I point out that the person designated to determine appeals by the City of Newburgh is Geoffrey E. Chanin, Corporation Counsel.

In an effort to enhance compliance with law, a copy of this opinion will be forwarded to the City Clerk.

I hope that I have been of assistance.

Janet Mercer

Committee on Open Government

One Commerce Plaza

99 Washington Ave., Suite 650

Albany, NY 12231

(518) 474-2518

(518) 474-1927 – Fax

Website: http://www.dos.state.ny.us/coog/coogwww.html

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from: Vitek, Autumn

to:

date: Fri, Aug 22, 2008 at 12:41 PM

subject: Your FOIL Request dated June 12, 2008

mailed-by: cityofnewburgh-ny.gov

Dear Ms. Johnston:

Your communication regarding your FOIL request is received. I apologize for the delay in this matter, which has resulted in part from the efforts of City staff to locate the records you have requested.

I have urgently requested that any contracts and/or related paperwork which may exist between the City of Newburgh and William Lowenstein and/or Community Initiatives Development Corporation, and including invoices as you have also requested; and also the disclosure statements you have requested, be forwarded directly to me as soon as possible.

Please note that your request includes records going back to 1985. Some of these records may be in the City’s archives in secure storage, while others may not have existed or may no longer exist. By copy of this letter I am asking the City’s Records Management Officer to ensure that any such records which may have been transferred to our archives be identified and copied so that they may be provided in response to your request.

We will also determine if the volume of paper involved in fulfilling your request is so large that another format, such as CD or floppy disk, would be a preferable medium.

Thank you for your patience. If you would like to speak with me personally about your request, please telephone me at (845) 569-7335. I hope to be able to fulfill your request, at least in part, within the next two weeks.

Sincerely,

GEOFFREY E. CHANIN

Corporation Counsel

GEC/av

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From: Jane Johnston

Fri, Aug 22, 2008 at 1:49 PM

To: “Vitek, Autumn”

Subject: Your FOIL Request dated June 12, 2008

Dear Mr. Chanin,

Thank you for your reply. I appreciate your efforts and look forward to hearing from you.

Kind regards,

A. Jane Johnston

[Quoted text hidden]

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From: Jane Johnston

Fri, Aug 22, 2008 at 4:26 PM

To: “Mercer, Janet (DOS)”

Subject: what to do about a FOIL request that’s been ignored

Dear Ms. Mercer:

I just wanted to thank you again for forwarding your opinion to the City of Newburgh. I received this email from the Corporation Counsel today and am happy to report that it looks very promising that the request will soon be answered.

Kind Regards,

A. Jane Johnston

[Quoted text hidden]

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From: Jane Johnston

Mon, Sep 15, 2008 at 7:59 AM

To: “Vitek, Autumn”

Subject: Your FOIL Request dated June 12, 2008

Dear Mr. Chanin,

It is over three weeks since I have heard from you and I am wondering if I could receive an update on the status of my FOIL request.

Kind regards,

A. Jane Johnston

[Quoted text hidden]

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[MAIL PACKET RECEIVED SOMETIME AFTER ITS POSTMARK OF SEPTEMBER 12, 2008, with the following cover letter]

September 11, 2008

A. Jane Johnston

Re: Freedom of Information Law (“FOIL”) Your Request of June 13, 2008

Dear Ms. Johnston:

In reply to your Freedom of Information Law (“FOIL”) request, dated June 13, 2008, please find enclosed copies of three contracts between the City of Newburgh Industrial Development Agency (“IDA”) and Community Initiatives Development Corporation (“CIDC,”) dated September 1, 2005, September 1, 2006, and September 1, 2007.

Please note that your FOIL request sought records involving the City of Newburgh, which is a completely separate and legally independent entity from the IDA. We have conducted a search and so far have not found any contracts between the City and CIDC; however, on the premise that you would have an interest in these contracts involving the IDA I am forwarding same to you.

Regarding your other requests, would you please provide more descriptive details concerning a “Disclosure Statement” of William Hauser dated on or around January 29, 2006 regarding Den Cass? We do not maintain a separate file for such documents. To what would such statement be related? Perhaps such a document rests in some other file related to a specific project. Please keep in mind that Den Cass was a private organization, and that Mr. Hauser is a private independent contractor, not a City employee.

Also, any further descriptive information you could provide concerning your request for “disclosure statements” of William Loewenstein would also be helpful to us in identifying the requested records.

Thank you for your cooperation.

Sincerely,

Geoffrey E. Chanin

Corporation Counsel

GEC/dt

Enclosures

W/out enclosure

cc: Robert H. McKenna, Director of Planning & Development

Lorene Vitek, City Clerk

A note regarding the above letter of Mr. Chanin’s: by coincidence, I was reading through the city council proceedings of the year 2004, a hefty volume available to the public at the Newburgh Free Library. I was amazed to come across Resolution 199-2004 or August 9, 2004: “A resolution authorizing the city manager to enter into an agreement with Community Initiatives Development Corp. for the assistance in the implementation and financing of economic and housing development in the City of Newburgh.” By curious omission, this resolution is NOT listed in the index of this volume preceding the resolutions; those two pages, 47 and 48, are missing. Did Ms. McGrane sign the contract that is attached to the resolution with CIDC? If she did, and if she were billed by CIDC, then it is curious such records could not be found. Of course it is entirely possible that Ms. McGrane chose for some unknown reason not to sign the contract and enter into consulting with CIDC, in which case there would be no records. As it stands, of the three contracts Mr. Chanin provided with this letter, dated Sept. 1, 2005, Sept. 1, 2006, and Sept. 1, 2007, only the 2005 contract has a signatory for the Newburgh IDA: Robert McKenna. The 2006 and 2007 contracts are ONLY signed by the CIDC representative.

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Subject: FOIL Request

From: Jane Johnston

Sun, Sep 21, 2008 at 8:34 PM

To: “Vitek, Autumn” , “Vitek, Lorene” , “McKean, Elizabeth”

Dear Mr. Chanin,

Thank you for your letter of September 11, 2008 in response to my FOIL request of June 13, 2008 (your noted date).

Thank you for enclosing the CIDC recent contracts. However, this does not entirely satisfy my original FOIL request, and I am happy to provide further details to aid you in producing the documents.

I would sincerely appreciate your timely attention to this matter.

I have amended the original request with additional details, highlighted in yellow:

(1) Please email the following records if possible:

1.1. Consultant contracts, if any, between William Loewenstein and the City of Newburgh OR the Industrial Development Agency OR the Local Development Corporation OR the Urban Renewal Agency for the years 1985 through 2008.

1.2. Consultant contracts, if any, between Community Initiatives Development Corporation and the City of Newburgh OR the Industrial Development Agency OR the Local Development Corporation OR the Urban Renewal Agency for the years 1985 through 2008.

1.3. Consultant contracts, if any, between the National Development Council and the City of Newburgh OR the Industrial Development Agency OR the Local Development Corporation OR the Urban Renewal Agency for the years 1985 through 2008.

1.4. Invoices submitted by the National Development Council to the City of Newburgh OR the Industrial Development Agency OR the Local Development Corporation OR the Urban Renewal Agency for the years 1985 through 2008.

1.5. Invoices submitted by William Loewenstein to the City of Newburgh OR the Industrial Development Agency OR the Local Development Corporation OR the Urban Renewal Agency for the years 1985 through 2008.

1.6. Invoices submitted by Community Initiatives Development Corporation to the City of Newburgh OR the Industrial Development Agency OR the Local Development Corporation OR the Urban Renewal Agency for the years 1985 through 2008.

1.7.a. Disclosure Statement of William Hauser dated on or around January 29, 2006 regarding Den Cass. Provided in Mr. Hauser’s capacity as the city’s consulting engineer, this document indicates that Den Cass has no relationship to the firm of McGoey Hauser; any documents, if they exist, stating other groups, firms, or employment Mr. Hauser was employed by and/or any property holdings he might have or had that would have been furnished for ethical reasons to prevent or reveal any potential conflict of interest.

1.7.b. Any other disclosure statements of William Hauser from the time period 2002-2007. For the years indicated, any documents, if they exist, stating other groups, firms, or employment Mr. Hauser was employed by and/or any property holdings he might have or had that would have been furnished for ethical reasons to prevent or reveal any potential conflict of interest.

1.8. Any disclosure statements of William Loewenstein from the time period of 1985 through 2008. Any documents, if they exist, stating other groups, firms, or employment Mr. Loewenstein was employed by and/or any property holdings he might have or had that would have been furnished for ethical reasons to prevent or reveal any potential conflict of interest.

If it is necessary to modify my request, and an email response is not preferred, please contact me at the following telephone number: (845) xxx-xxxx.

A. Jane Johnston

Newburgh, NY 12550

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From: Jane Johnston

Sun, Sep 21, 2008 at 8:48 PM

To: “Vitek, Autumn” , “Vitek, Lorene” , “McKean, Elizabeth”

Subject: FOIL request

Records Management Administrative Office

Records Management Officer

123 Grand Street

Newburgh, NY 12550

REQUEST FOR RECORDS BY EMAIL

Dear Records Access Officer:

(1) Please email the following records if possible:

On July 24, 1986, there was a public hearing at the City Council meeting regarding an Urban Development Action Grant Application for the construction of professional office space at 298 Broadway in the City of Newburgh, New York, which was then approved and submitted.

1.a. The original, completed UDAG application.

1.b. Any correspondence from 1986 regarding this UDAG application, including correspondence with Dan Marsh, William Loewenstein, NDC, Community Development Group, the federal government, and/or other parties.

If it is necessary to modify my request, and an email response is not preferred, please contact me at the following telephone number: (845) xxx-xxxx.

A. Jane Johnston

Newburgh, NY 12550

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From: Vitek, Lorene

Mon, Sep 22, 2008 at 1:21 PM

To: Jane Johnston

Subject: FOIL request

FOIL ACKNOWLEGMENT.doc

35K

September 22, 2008

A. Jane Johnston

Re: FOIL Request– UDAG Application

298 Broadway

Dear Ms. Johnston:

Your request for certain records and materials from the City of Newburgh pursuant to the New York State Freedom of Information Law (Public Officers Law, Article 6, known as “FOIL”) has been received and are hereby acknowledged. We are identifying and collecting the records, which is the subject of your request.

Under State law, the statutory fee which the City of Newburgh may charge in connection with the production of such records is .25¢ per page for 8½” x 11” photocopies; and/or the actual cost of reproduction of certain other materials and records as stipulated in Chapter 163 “Fees” of the City of Newburgh Code. If the fees to be charged in fulfilling this request could amount to a significant sum, the City of Newburgh will notify you of this fact before taking any action, which would incur such costs. You will then be invited to come to the City offices to inspect the subject records to select which of them you wish to have reproduced. This will spare you unneeded and unintended expense.

Please convey any questions, comments or problems you may have to the City of Newburgh Freedom of Information Officer, in care of the Corporation Counsel, 83 Broadway-City Hall, Newburgh, New York 12550. In the event your request, or any portion thereof, is denied, you may appeal such denial in writing by sending such written appeal to the City of Newburgh Freedom of Information Law Appeals Officer, in care of the Corporation Counsel, 83 Broadway-City Hall, Newburgh, New York 12550.

Yours truly,

Lorene Vitek

City Clerk

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From: A. Jane Johnston

Sent: Friday, October 10, 2008 12:25 PM

To: dos.dl.InetOpenGov

Subject: Question regarding timely response to FOIL/further information

Dear Committee,

On June 12, 2008, I made a FOIL request to the City of Newburgh that was not responded to until the Committee member Janet Mercer’s opinion was sent. In September I received an answer to this request, denying in part due to lack of identifying information. On Septmeber 21, I sent an email, which should have been received Monday September 22, providing the additional information to identify the records in question. Three weeks have elapsed since this email and I have received no response or acknowledgment. Is the law the same regarding these secondary requests as the initial requests? Many thanks for your insights regarding this issue.

Kind regards,

A. Jane Johnston

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Subject: FOIL Request

From: Jane Johnston

Wed, Oct 22, 2008 at 9:26 AM

To: “Vitek, Autumn” , “Vitek, Lorene” , “McKean, Elizabeth”

Dear Mr. Chanin,

One month ago, I made two FOIL requests; one was a new request, which I will forward separately, and the second was the request copied below, providing additional identifying information for my request of June 13.

Unfortunately, I have received no further acknowledgment to these requests, or indication of how long they might take to fulfill; according to the Committee on Open Government, I should have received some such indication within twenty days. I will also forward you the opinion from the Committee regarding FOIL requests.

Please let me know if I should take this to understand that my requests have been denied; in which case I will then take appropriate action. It is my hope that this is not the case, and that my requests will be fulfilled.

I am sending this by email, as per our verbal conversation some weeks ago; if it is preferred or necessary that I follow up in writing please let me know and I will do so.

Sincerely yours,

A. Jane Johnston

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Subject: FOIL request

From: Jane Johnston

Wed, Oct 22, 2008 at 9:27 AM

To: “Vitek, Autumn” , “Vitek, Lorene” , “McKean, Elizabeth”

Please note my preceding email; this was my second FOIL request.

Kind regards,

A. Jane Johnston

On Sun, Sep 21, 2008 at 9:48 PM, Jane Johnston wrote:

[At this point I resend the two original FOIL requests]

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RE: Question regarding timely response to FOIL/further information

Wed, Oct 22, 2008 at 2:06 PM

From: Mercer, Janet (DOS)

To: “A. Jane Johnston”

October 22, 2008M E M O R A N D U MTO: Persons seeking written guidance or opinions concerning open government lawsFROM: Robert J. Freeman, Executive Director

We have received your correspondence in which you raised questions and/or requested a written advisory opinion involving the interpretation of New York’s open government laws, and we apologize for the delay in response.

For a variety of reasons, we are unable to prepare written responses to your correspondence as quickly as we would like. Awareness of open government laws has increased, due in part to the desire for greater accountability and the enactment of amendments to both the Freedom of Information and Open Meetings Laws. As a consequence, the staff of the Committee on Open Government is receiving more telephone, email and other written inquiries than ever before, and we are asked with greater frequency to provide training and education to government associations and agencies, public interest groups, students and news media organizations.

Notwithstanding the growth in interest in open government laws and the service provided by the Committee, its staff now consists of an Assistant Director, Camille Jobin Davis, our office manager for thirty years, Janet Mercer, and myself. In view of the backlog of requests for written responses, we are often unable to respond in writing for several months. To serve you efficiently, we are offering an opportunity to obtain verbal responses to your inquiries. If that is acceptable, please phone the Committee, and we will speak with you immediately or soon after receiving your call. If you continue to want a written response, please so inform us by phone, fax or by transmitting an email to janet.mercer@dos.state.ny.us. If we do not hear from you within 3 weeks of your receipt of this memorandum, it will be assumed that a written response is no longer desired. Please note that answers to your inquiries may be found in the thousands of advisory legal opinions indexed by subject and available on our website.

It is gratifying that so many have developed an awareness of the importance and utility of our laws relating to the public’s right to

know and seek the guidance from the Committee on Open Government. However, the interest in those laws has become so overwhelming that we are unable to provide detailed written responses to inquiries as efficiently as we would like.

Thank you for your consideration and forebearance.

RJF:jm

Robert J. Freeman

Executive Director

Committee on Open Government

One Commerce Plaza

99 Washington Ave., Suite 650

Albany, NY 12231

(518) 474-2518

(518) 474-1927 – Fax

Website: http://www.dos.state.ny.us/coog/coogwww.html

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Subject: FOIL request of October 22, 2008

From: Vitek, Autumn

Mon, Nov 10, 2008 at 3:44 PM

To:

Dear Ms. Johnston:

I am in receipt of your FOIL request dated Wednesday, October 22, 2008. I regret the delay in replying to your request. Your have requested records from the year 1986. Specifically, you have requested copies of the original UDAG application for a grant in connection with the construction of professional office space at 298 Broadway in the City of Newburgh; and any correspondence in connection with such UDAG application, including but not limited to correspondence with Dan Marsh, William Lowenstein, NDC, Community Development Group, the federal government and/or other parties. If such records are on hand and available in the Office of Economic Development in City Hall, we will provide them to you in approximately ten (10) days or less. If they are in electronic format, they will provided to you in such format.

If the records are still in existence, then they may be in storage in the City archives. If so, they must be requested and, if found, retrieved from such storage. This process may require approximately four (4) weeks.

I will keep you advised of the status of the retrieval of the records you have requested. Thank you for your communications and understanding regarding this matter.

Sincerely,

GEOFFREY E. CHANIN

Corporation Counsel

GEC/av

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Subject: FOIL request of October 22, 2008

From: Jane Johnston

Mon, Nov 10, 2008 at 3:55 PM

To: “Vitek, Autumn”

Dear Mr. Chanin:

Thank you very much for your email today. I was about to compose a letter in expectation that my request had been denied, so I am greatly relieved and thankful that the request will be honored.

I greatly appreciate your efforts, and the efforts of all involved in finding the relevant records.

Kind regards,

Jane Johnston

[Quoted text hidden]

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Subject: FOIL request of October 22, 2008

From: Jane Johnston

Mon, Dec 1, 2008 at 5:28 PM

To: “Vitek, Autumn”

Dear Mr. Chanin,

More than two weeks have passed since I received this email. I would appreciate receiving the correspondence mentioned in the first paragraph as soon as possible (you had promised within ten days.) Please let me know what the status is of this.

Kind regards,

A. Jane Johnston

On Mon, Nov 10, 2008 at 3:44 PM, Vitek, Autumn wrote:

[Quoted text hidden]

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[WRITTEN PACKET MAILED TO CORPORATION COUNSEL]

December 13, 2008

Geoffrey E. Chanin, Esq.

Corporation Counsel

City Hall, 2nd Floor

83 Broadway

Newburgh, NY 12550

Via Certified Mail

Re: FOIL Request of June 12, 2008 and September 21, 2008

Dear Mr. Chanin,

By your failure to furnish the documents I have requested according to the Freedom of Information Law or to provide a timely response indicating when these documents will be provided, I understand that my request has been effectively denied.

Therefore, as within my FOIL rights, I do hereby request that within ten days of receipt of this letter the requested documents be furnished or I be provided with a written explanation as to why my request has been denied and when the documents will be furnished.

For your convenience and reference I am providing a timeline of our correspondence complete with copies of the emails, including the Department of State’s Committee on Open Government’s opinion, written by Janet Mercer, in response to my query about “what to do about a FOIL request that has been ignored.”

As one additional note, to be perfectly clear, I have requested documents not ONLY from the year 1986, but from the time period of 1985 to the present, as specified in my original FOIL requests and as I indicated in our phone conversation. I would imagine that, for example, the recent invoices of Mr. Loewenstein’s Community Initiatives Development Corporation would be fairly accessible in the Office of Economic Development.

I look forward to receiving the requested documents.

Sincerely yours,

A. Jane Johnston

CC: Councilwoman Marge Bell, Councilwoman Christine Bello, Councilwoman MaryAnn Dickinson

Att: Timeline, original FOIL requests and additional email correspondence

December 13, 2008

TIMELINE OF CORRESPONDENCE

June 12, 2008: Email from Jane Johnston, “FOIL Request”

August 20, 2008: Email Opinion of Janet Mercer, Department of State, re: “what to do about a FOIL request that’s been ignored”

September 11, 2008: Letter of acknowledgment for my June 12 (June 13 by your description) request

September 21, 2008: Email from Jane Johnston “FOIL request” including UDAG application and various correspondence (see attached for specifics)

September 21, 2008: Email from Jane Johnston “FOIL request” providing additional identifying information to clarify my request of June 12 (June 13 by your description)

September 22, 2008: Emailed letter from City Clerk Lorene Vitek acknowledging the UDAG application FOIL Request (my request of Sept. 21)

October 22, 2008: Email from Jane Johnston to Mr. Chanin, “FOIL Request:”

“One month ago, I made two FOIL requests; one was a new request, which I will forward separately, and the second was the request copied below, providing additional identifying information for my request of June 13.

“Unfortunately, I have received no further acknowledgment to these requests, or indication of how long they might take to fulfill; according to the Committee on Open Government, I should have received some such indication within twenty days. I will also forward you the opinion from the Committee regarding FOIL requests.”

November 10, 2008: Email from Mr. Chanin stating that the documents would be provided, if available, within 10 days or less; and documents retrieved from storage within approximately four weeks.

November 10, 2008: Email from Jane Johnston thanking Mr. Chanin for acknowledgment of request and providing a timeline for furnishing of documents.

December 1, 2008: Email from Jane Johnston “FOIL request of October 22, 2008″ that

“More than two weeks have passed since I received this email. I would appreciate receiving the correspondence mentioned in the first paragraph as soon as possible (you had promised within ten days.) Please let me know the status of this.”

++++++++++

Subject: FOIL Request

From: Vitek, Autumn

Tue, Dec 23, 2008 at 12:05 PM

To:

Cc: “Vitek, Lorene” , “Zapata, Lourdes”

Dear Ms. Johnston:

We believe we have found the invoices submitted by Community Initiatives Development Corporation. Copies of the same will be available in the City Clerk’s Office on Monday, December 29, 2008, as this data is not available electronically.

We will treat your request as a continuing one and provide you with copies of the requested documents, including in e-mail format where available; when same are identified.
Sincerely,

GEOFFREY E. CHANIN

Corporation Counsel

GEC/av

++++++++++

Mr. Chanin did provide the CIDC invoices from 1/05 – 9/08, but missing from these were the invoices for 1/1/07 – 1/31/07 and 5/1/07 – 5/30/07.

On October 22, 2009, Corporation Counsel Geoffrey Chanin resigns, putting Assistant Corporation Counsel Michelle Kelson into his seat.

Following the December 14, 2009 City Council meeting, I approach acting corporation counsel Michelle Kelson and mention my languishing FOIL requests. She directs me to resend the requests to her, although she acknowledges that FOILs are not her “top priority.”

++++++++++

Subject: FOIL request of October 22, 2008

From: Jane Johnston

Tue, Dec 15, 2009 at 12:58 AM

To: “Vitek, Autumn”

Dear Ms. Vitek/Ms. Kelson:

I would appreciate it if you would forward this email to Acting Corporation Counsel Michelle Kelson.

Ms. Kelson: attached below is one of the last emails I received from Mr. Chanin regarding my FOIL requests. I am still actively seeking the information requested and would appreciate your attention to this matter. I will also forward to you the original FOIL requests, as amended, in their most recent form. These original requests are more reliable descriptions of the records I seek than Mr. Chanin’s summary.

Kind regards,

A. Jane Johnston

Newburgh, NY 12550

———- Forwarded message ———-

From: Vitek, Autumn

Date: Mon, Nov 10, 2008 at 3:44 PM

Subject: FOIL request of October 22, 2008

To:

Dear Ms. Johnston:

I will keep you advised of the status of the retrieval of the records you have requested. Thank you for your communications and understanding regarding this matter.

Sincerely,

GEOFFREY E. CHANIN

Corporation Counsel

GEC/av

FOIL request

++++++++++

Subject: FOIL request

Jane Johnston

Tue, Dec 15, 2009 at 1:02 AM

To: “Vitek, Autumn”

Dear Ms. Kelson,

Here is the other FOIL request. Thank you very much for your assistance.

Kind regards,

A. Jane Johnston

———- Forwarded message ———-

From: Jane Johnston

Date: Sun, Sep 21, 2008 at 8:48 PM

Subject: FOIL request

To: “Vitek, Autumn” , “Vitek, Lorene” , “McKean, Elizabeth”

Records Management Administrative Office

Records Management Officer

123 Grand Street

Newburgh, NY 12550

REQUEST FOR RECORDS BY EMAIL

Dear Records Access Officer:

(1) Please email the following records if possible:

1.a. The original, completed UDAG application.

If it is necessary to modify my request, and an email response is not preferred, please contact me at the following telephone number: (845) xxx-xxxx.

A. Jane Johnston

Newburgh, NY 12550

++++++++++

Subject: FOIL Request

From: Jane Johnston

Wed, Dec 16, 2009 at 9:42 PM

To: “Vitek, Autumn”

Dear Ms. Kelson,

Please note that in the FOIL request I sent to you yesterday, I should let you know that Mr. Chanin did provide some of the invoices to satisfy request 1.6. I have invoices between CIDC and the Newburgh Industrial Development Agency from roughly 2005 to present.

This was the only request Mr. Chanin honored, despite prodding from the Committee for Open Government.

On Tue, Dec 15, 2009 at 1:00 AM, Jane Johnston wrote:

1.6. Invoices submitted by Community Initiatives Development Corporation to the City of Newburgh OR the Industrial Development Agency OR the Local Development Corporation OR the Urban Renewal Agency for the years 1985 through 2008.

Kind regards,

A. Jane Johnston

++++++++++

As of Monday, December 28, 2009, I have received no acknowledgment or update of any kind from Ms. Kelson or anyone in city government regarding the FOIL requests, which are now over a year and a half old.

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