It could be curtains for the Newburgh Community Development Agency (NCDA.)  At the city council work session held March 4, new corporation counsel Bernis Nelson proposed that the city assume the assets and liabilities of the NCDA.

What is the NCDA?

The NCDA is the successor to the Newburgh Urban Renewal Agency, created to manage urban renewal projects in the City of Newburgh.  The agency owns the chunk of urban renewal land around Marine Drive that awaits development.  Over the years, the agency has taken over various responsibilities, serving as a pass-through for the federal HUD CDBG funds, as well as offering various loans.

NCDA has been inactive

The last explicit reference to NCDA business I have found was resolution 9-2005, from January 10 of that year, appointing the officers of the NCDA.  Mayor Valentine was appointed Chairman; Councilwoman Angelo, Vice Chairman; Dawn Gobeo, Treasurer, and Councilwoman Elsa Figueroa App, Secretary.

Lopez lawsuit, need for director precipitates action

As reported earlier, Elaine and Hector Lopez filed suit against the NCDA on April 16, 2009, due to a personal injury Ms. Lopez allegedly suffered on NCDA property.  Counsel needed to be appointed to defend the NCDA.  Additionally, the former planning department director, Robert McKenna, had resigned.  The new director, Lourdes Zapata, had not been approved by the board to act on behalf of the NCDA.  At several meetings, corporation counsel Geoffrey Chanin endeavored to have the council meet as the board if only to appoint Ms. Zapata administrative director.  The council balked, expressing concerns about the agency’s need for compliance with the new public authorities law, and the burden of taking on additional responsibilities.  Nothing was done.

New corporation counsel proposes transfer of assets, liabilities

Last Thursday night, Courtney Kain, Acting Director of Planning and Development, and Bernis Nelson, Corporation Counsel, described the proposed action.

Ms. Nelson stated that it came to her attention because “all these people were calling me” regarding their loans.  She proposed that the council meet as the NCDA board, pass a resolution approving the tranfer, then pass a resolution as the council, accepting the transfer, and that they could later dissolve the agency through state legislature action.

“You don’t need an urban renewal agency,” Ms. Nelson said.  “You can undertake urban renewal if you want to.”

Urban renewal agencies least compliant with the law

Public authorities such as the NCDA must comply with certain New York State reporting and training requirements.  They file their reports with the Authority Budget Office.  I spoke with David Kidera, director of the ABO, on Friday about Newburgh’s proposed transfer.

Mr. Kidera confirmed that the process would require the three steps Ms. Nelson described; a resolution by the NCDA, a resolution by the city council, and finally, a home rule action by the state legislature to officially dissolve the agency.

Johnston: Can they transfer assets?

Kidera: Yes, I think 554, and even 556, I believe talk about the authority of an urban renewal agency to transfer property and assets to municipal government, while the municipal government would have to vote to, in effect, accept that.  And, in theory, the transfer should be in accordance with some urban renewal plan that the community development agency should already have in place.  Obviously, if they haven’t met in years, they might not have a very active plan, but the law basically says that if they want to transfer assets to the city, it should be in accordance with some long-term plan that that property be redeveloped… consistent with whatever urban renewal strategy is in place for the city.

Johnston: I came across the two audits [done by the ABO], of the White Plains Urban Renewal Agency, and the Rome Urban Renewal Agency.  I was wondering if Rome or some other agency has [recently] dissolved.

Kidera: I think we’ve advocated that a couple do.  Back in the summer, what happened was we noticed that there were a healthy number of urban renewal agencies that were not complying with our law.  As a group, as a class, they were by far the highest percentage of noncompliant entities.  So we went out to 15 of them, randomly, and said “what’s going on.”  In a number of cases, it’s basically what you’re seeing in Newburgh, the agency is defunct, or it is inactive, or it really is functioning more, is viewed even within the local government, as a city government department, not as a public authority.  And so they really didn’t think that the law applied to them.  So we said, if it really is inactive, you really need to take steps to dissolve, because either you’re active and you’re complying with the law, or you’re dissolved.  So I think a number of them are going to dissolve.  I think Port Chester in Westchester may be the furthest along.  What we’ve been telling them is you really should be taking formal action that goes well beyond just a resolution by the board saying “we’re going to disband, we’re no longer going to meet,” because you in effect exist into perpetuity unless the legislature intervenes.  So that fact that you said “we’re not going to meet anymore” doesn’t mean you don’t exist.  So I would suggest that they take those steps.

The city should adopt a resolution accepting the transfer of assets, and the board should pass a resolution to formally begin the dissolution process.

Johnston: Is there any reason why Newburgh should continue to have this separate agency?  In one of these audits, I didn’t know that it was a violation to–

Kidera: employ staff?

Johnston: Yes. And that’s been the case here for…

Kidera: Right, and that’s really a violation of a comptroller’s opinion that was issued a number of years ago, that’s what we cite.  I assume that their opinion is based on some legal basis.  So I think, right, we were concerned about that, we suggested that all those local governments and urban renewal agencies consult with their local attorneys and make sure that they in fact are complying with the comptroller’s opinion.  And all our audits, when we found that to be an issue, were referred to the comptroller.  I don’t know that they’ve done anything, but I think that is an issue.

See page 3 of the White Plains Urban Renewal Agency Audit; “urban renewal agency staff may not be utilized to perform work for municipal departments, even if those services are reimbursed by the municipality.”––JJ

Loss of NCDA would cut ability to issue debt

Kidera: If you’re asking the question, is there any reason a local government should be leery about accepting the assets, I think the question really comes down to a couple of points.  One is, does the urban renewal agency have debt.  If they do, then the city, in this case, becomes liable for that debt.  So that may give someone pause.  In this case, it doesn’t look like they have any outstanding debt, so it’s not particularly a big issue.

If you were in the middle of an urban renewal redevelopment of downtown, then certainly an urban renewal agency can be a means by which you can issue debt that is not city debt, in this case.  And so the debt would be paid off through rents on the property that’s being redeveloped, through the sale of the property, or whatever.  And it does not become a city obligation.  But in this case, it does not sound like the City of Newburgh is interested in issuing debt through the community development agency for any kind of urban renewal project.

So I think by transferring this function to the city, any future urban renewal projects that involve the issuance of debt, it becomes, again, city debt, and then you’re subject to constitutional debt limits, and all the rest of the stuff that applies to cities.  2% of your full value property, or whatever the  restrictions are.

So it does limit the city, a little bit.

Other than that, it makes a lot of sense to us, and what we advocated in some of those reports, was that if you really aren’t active, if you really aren’t engaged in anything, if you act as if you’re defunct, and there’s an acceptance of the fact that you really aren’t a functioning urban renewal agency, the go ahead and dissolve.

There are cities that don’t have active urban renewal agencies.  So that the city would develop an urban renewal plan, maybe through its department of economic development, and they’d be using federal funds, or the city would be issuing debt.  You don’t have to create an urban renewal agency.

Need for public referendum?

Johnston: In our charter, there’s a provision that waterfront land must have a public referendum if it’s going to be sold.

[See § C16.03. Rights of city in waterfront, lands under water, wharves, piers, docks, parks and playgrounds. [Amended 7-27-1961 by L.L. No. 1-1961]:

The rights of the city in its waterfront, lands under water, wharves, piers, docks, parks or playgrounds shall not be sold or conveyed unless such sale or conveyance shall first have been authorized by a plurality of votes cast at a special election at which all qualified voters of the city who registered at the last preceding general election shall be entitled to vote. The notice, officers, polling places, manner of conducting and other details of such special election shall be determined by ordinance of the Council.

Note that the City did not hold a public vote when waterfront property was sold from NCDA to Front Street on the Hudson in 1998.]

Kidera: I would assume your charter would supersede the provisions of general municipal law.  So if the general municipal law says they can transfer this land to the city for urban renewal purposes, without a competitive bid and negotiation… The charter requires some other step, whether it be a referendum or something else, then–without knowing the particulars –it would seem to me that that should have to be addressed by the urban renewal agency and the city before the transaction is completed.

If that is in fact true, and that’s what it requires, then I would think the city’s attorneys, or the urban renewal agency’s attorneys or someone would have to address whether or not that provision applies here.

Johnston: Because it is a transfer, even though they are both city entities.

Kidera: Yes.  If that’s what the charter requires, then someone ought to look at that very carefully.

P.S. Whoops! What about the Lopez suit?

As previously reported here, when former corporation counsel Geoffrey Chanin couldn’t get the council to act as the NCDA and approve Ms. Zapata to act for them and appoint legal counsel, the suit Elaine and Hector Lopez originally filed against the NCDA was expanded to include the City of Newburgh as well.  At a city council meeting, it was promptly approved by the council that this “new” suit be referred to the corporation counsel.  Tarshis, Catania, Liberth, Mahon & Milligram, PLLC were hired to defend the city.

On July 29, 2009, Michael Catania promptly delivers to the court an accompanying letter to his motion.  In that motion, Mr. Catania argues that the property on which Ms. Lopez allegedly was injured belongs to the NCDA––not the city––and thus the city should be dismissed from the suit.

Whoops!

Then came this:

Suddenly, Mr. Catania is now counsel for BOTH the City of Newburgh AND the Newburgh Community Development Agency.  How did that happen?  The NCDA never met to approve such an action, and no one was appointed to act on the agency’s behalf.  But, there it is, and with his new duties representing both entities, clearly Mr. Catania can no longer pin the blame on the NCDA.

On October 1, 2009, Mr. Catania withdraws his motion to dismiss the city from the suit and put the blame on the NCDA.

The legal wrangling has continued, and according to court records, is due to go to trial on May 5 before Judge Catherine M. Bartlett.

Somehow, this bit of NCDA business escaped Ms. Nelson’s attention Thursday evening.

Video excerpts from the city council work session Thursday, March 4, 2010.

The work session began with a grave report on the city’s financial status, given by Dwight Hadley, CPA, and assisted by Christine Mitchell, CPA, the city’s new comptroller:

Hadley notes that the city is in substantial debt, approximately $10M for 2009 and at least $6M for 2010, and explained the process of deficit financing. Ms. Mitchell, who has been with the city for a week, described her dismay at a lack of internal controls and said she would implement internal controls and new tracking procedures for grants.


Next came a presentation by Dr. Jerome Blue on the status of the Liberty Street School project:

The third presentation was regarding the Community Resource Officers, or CROs. Representing the Newburgh Enlarged City School District were Ralph Pizzo and Mike Pacella. The school district has offered to pay the city for two new police officers in exchange for staffing Newburgh Free Academy and North Junior High School with a CRO each. Also assisting with the discussion were two former CROs, who spoke of the benefits of the positions, and FBI agent Maryann Goldman, who spoke about the seriousness of Newburgh’s gang problems (as reported in the cover story of the Times Herald-Record) and urged the council to fund the positions:

Full video of the entire CROs discussion here:

Finally, from later in the work session, discussion on the Home Improvement Loan Program.

This program is administered by Demetrius Faulk. Courtney Kain, Acting Director of the Planning Department, explained the program with Demetrius. It was during discussion of this program that (at 6:15 on the video) Councilwoman Marge Bell notes that the records show her as the recipient of a $13,500 loan. Bell says she did receive some funding, but she says she did not receive $13,500.

The loan originator is listed as the Newburgh Community Development Agency (NCDA), which corporation counsel Bernis Nelson recommended dissolving earlier in the work session.

Ms. Mitchell is a CPA, having graduated Magna Cum Laude from SUNY with a BS in Accountancy.

While at East Fishkill, Mitchell computerized all departments “and saved more than $500,000 through internal audits.”

Seen in the Times Herald-Record classified section “new today:”

“Director of Planning & Development. City of Newburgh, NY. Opportunity for innovative, motivated and creative individual to guide redevelopment efforts in historic river city.  Must have Masters & 2 years exp in economic development, real estate, public relations or related field.  Starting Salary $86,889. Excellent benefit pkg.  Send resume with cover letter to mmmills@cityofnewburgh-ny.gov by Feb 17th, 2010. EOE”

This is the search that was first issued last year, that by some accounts garnered over 100 resumes.  City Manager Herbek had said he “wasn’t very impressed” with those resumes at the January Lyceum meeting, and that the Director of Planning and Development position wasn’t his top priority.  Currently Courtney Kain is Acting Director of Planning & Development.

What changed?

And if someone already submitted a resume, should they submit again?

I look at it almost as a tourist attraction. The international attention would put Newburgh on the map… The businesses around here would benefit. People would be going to restaurants and traveling around the Newburgh area who’ve never been here before.

This came as pressure mounted against holding the trial in the federal courthouse in New York City.

The Mayor also appeared on myfoxny.com:

The video above also includes an excerpt from a press conference held by County Executive Eddie Diana, at which Mr. Diana sharply disagrees with Mayor Valentine. Diana does not want the trials in Orange County, and has written as much to President Obama.

But what of the city council of Newburgh itself? Although media reports suggest implicitly or explicitly that Valentine has the support of his colleagues, when his colleagues are actually asked, their opinions are far from unanimous in support.  The Newburgh Advocate asked them what they thought.

Regina Angelo – “A shot in the arm”

Reached by telephone, Regina Angelo said she agreed with Mayor Valentine, that the trials would “help businesses.” She pointed out that there’s a “hotel right there,” and that restaurants would benefit. She said it would be a “shot in the arm for us… [we'd] really be on the map.”

Marge Bell – “I am absolutely opposed to this folly”

[I'm] shocked that the mayor would launch this kind of campaign without consulting the other members of the council.   Where did he receive the authority to speak for the entire council?  Inviting the trials here shows a total disregard for the residents of our city.  Safety and disruption of our way of life needed to be considered first.  The whole notion is ill hatched, and I am absolutely opposed to this folly.

Christine Bello – “It’s like making a business deal over an open coffin”

As always this is something that the Mayor did without even consulting the rest of us prior to going public with this.  He pitched it to me after the headlines, stating that the city could negotiate getting the courthouse paid off and possibly securing the salaries and benefits for 10 police officers for ten years.  I would have to see that offer in writing in order to believe it.  Generally if it sounds too good to be true it is.  The only thing the feds have announced is that they would pay for the security required.  With the military like security I believe it would limit businesses in the vicinity of the courthouse rather than economically stimulate them, something that would put some out of business.  I’m told that these trials could go on for years; that is a long time to have your business interrupted, and still survive.

Personally I feel that these characters should be tried by a military tribunal.  There is nothing worth putting a bulls eye on our already beleaguered little city.  When Valentine stated that he had no fear of terrorist threats here I wasn’t surprised; he does not even acknowledge the existing crime stats. Unlike the Mayor, I live AND work within a block either way of the courthouse, it’s very troubling to me.  Aside from the security concerns I get an overall uneasy feeling about this.  It’s like making a business deal over an open coffin, or selling souvenirs at the Alamo. It just doesn’t feel right.  Not to mention, what would this do to our own court cases that are already running behind? I don’t believe this was well thought out.

Curlie Dillard

As of post time, Councilman Dillard had not responded to requests for comment.

More points to ponder…

According to this press report, NYPD Commissioner Raymond Kelly outlined a security plan that would include two perimeters, one “soft” and the other “hard.”  The soft perimeter would be monitored by cops, while the hard perimeter would be blocked off.  Any permutation of a similar plan here in the City of Newburgh would almost certainly place a portion of 9W/Robinson Avenue at the intersection with Broadway within those perimeters.  What impact would this have on the city?

Does Newburgh have the symbolic capital to hold such a trial?  The Nuremberg Trials were held in Nuremberg in part because of its association as the birthplace of the Nazi Party.  Additionally, it had an intact Palace of Justice with an adequate prison nearby.  There doesn’t seem to be an adequate corollary for our current situation.  If anything, New York City would have made the point that “[t]his is where the attack occurred, and New Yorkers should have been proud to see justice done here.”

On Tuesday, January 26th, the Newburgh Zoning Board of Appeals heard a presentation in which William Kaplan asked for a variance for his proposed housing development on waterfront land adjoining his Regal Bag Building.  Assisting Mr. Kaplan was Lou Marquet from the Leyland Alliance, in addition to an attorney from Jacobwitz and Gubits.  Kaplan explained he had hired Leyland to assist in the planning process and gaining approvals from the city.

Kaplan began with the history of the Regal Bag Building, before launching into a description of the proposed buildings.  Throughout, he emphasized that the variance was needed to make the project financially viable.  He compared it to other Newburgh projects, stating that “the Foundry is floudering… Ferry Crossing went bankrupt twice… Voisons, that went bankrupt…” until IBM and Kaplan brought Voisons back.

Claims project would bring $2M in taxes

Kaplan reiterated the financial advantages of approving his project, chief among them the $2M addition he claims the project would bring in taxes.

Mr. Kaplan did not sugarcoat his view of the reality facing developers in Newburgh.  “We are starting a project at the worst time in the country in one of the worst cities in the country… we have a bankrupt city right now.  You all know it, I don’t have to tell you.  With no chance of getting anything in here except Ray’s putting up some buildings there [referring to Ray Yannone's Colden Street project].  But there ain’t nothing else going on and there ain’t going to be anything else going on for a very, very long time.”

Public comments were only in favor of project

Several people spoke during the public comments period, including above-mentioned Ray Yannone and Chris Colombo, whose children are partners with Yannone on the Newburgh Train Station renovation.

Also speaking in favor of the project was Dick Polich of the Yellow Bird Gallery building.

Variance decision postponed until next month’s meeting

Because several board members were absent, and also due to the too-brief period board members had to review the proposal, a final decision about the variance was postponed until next month’s meeting.  One part of the variance request involves waiving a need to build over 100 parking spaces.

Full video coverage of the meeting is posted below (or, if you have difficulty, view the video directly at this link.)

Attendees of the Newburgh City Council work session this past Thursday might have had a funny “Back to the Future” feeling when Neil Novesky was invited to the table.  The council was vetting Novesky and his wife Elizabeth to serve as CDBG consultants under Courtney Kain, Acting Planning Department Director.   Community Deveopment Block Grant (CDBG) funds are given to the city from the Department of Housing and Urban Development with the goal of improving conditions “principally for low- and moderate-income persons.”

Mr. Novesky was an employee of the City of Newburgh’s Development Department from 1983-1986.

As Novesky stated during his interview, it was a time of many “UDAGs” – Urban Development Action Grants, including what was to become the Key Bank Building at the foot of Broadway, and the selling off of Broadway School to several partners, including then consulting engineer Bill Hauser.

Later Novesky and his wife would work for the City of Middletown (as of this posting their website still lists Novesky as Community and Economic Development Director.) Novesky, along with Middletown Mayor Joe DeStefano and City Court Judge Rich Guertin, were the three defendants of the corruption trial that forced DeStefano out of office.  Novesky and Guertin were found not guilty on all counts in April 2005.  Novesky continued working during the trial and through the mayorship of Marlinda Duncanson, tendering his resignation December 4, 2010––just before DeStefano would return to office.

During the Noveskys interview Thursday night, Neil did the talking.  He said he would focus on large economic development projects, and try to set up revolving economic development loans with CDBG funds.  Toward the end he made mention of a nonprofit he and his wife work for.  He spoke softly, and I couldn’t quite catch if he stated the nonprofit’s name.  After their presentation, they made a swift exit, and I ran after them, catching them at the top of the stairs.

“You mentioned you work for a nonprofit.  What is the name of it?”

“CIDC.”

“Loewenstein?” I asked.

“Yes.  He pays on a per diem basis,” Novesky answered.

Have we met before?

It’s hard to tell when Mr. William Loewenstein began his consulting relationship with the City of Newburgh.  Back in 1982, the City passes Resolution No. 6 on January 25 by which the “National Development Council of Hudson, New York” is contracted to provide economic development assistance for $35,000 per year.  In later publications, Loewenstein is identified as a consultant with NDC.

Loewenstein was one of the signatories of the incorporation papers for the Broadway School partnership “Denn Cass”––a deal that profited some of the partners, if not the city’s local development corporation.

Loewenstein continued his consulting relationship over the years in Newburgh, more recently through his nonprofit CIDC – Community Initiatives Development Corporation.  He was also a consultant to the City of Middletown, and indeed, gave grand jury testimony in the aforementioned corruption trial.

The Newburgh IDA ended its relationship with CIDC when a new board was seated, after talks with CIDC representative Ed Schorno in 2008.

CIDC Courthouse Deal

CIDC is a controversial name in Newburgh in part because of the city courthouse deal with terms such as triple-net-lease proposed by Loewenstein.  At the time (2005) Loewenstein was a financial consultant to the city, he proposed that his nonprofit be the funding vehicle for the construction of the new courthouse.

Antony Takahashi, who then lived in Newburgh and worked as a financial analyst for IBM, did an evaluation of the terms of the contract.  The Times Herald-Record quotes Takahashi saying he would never recommend the deal to his bosses. “Not in good conscience.”

Full video of the CDBG discussion, including interview with the Noveskys:

There have been reports of problems with the video embedded below. To access the video directly, go here.

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

++++++++++

From: McKean, Elizabeth <records@cityofnewburgh-ny.gov>

Fri, Jun 13, 2008 at 9:49 AM

To: “Vitek, Lorene” <LVitek@cityofnewburgh-ny.gov>

Cc: <Jane Johnston>

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

++++++++++

From: Jane Johnston

Mon, Aug 18, 2008 at 11:51 AM

To: “McKean, Elizabeth” <records@cityofnewburgh-ny.gov>

Cc: “Vitek, Lorene” <LVitek@cityofnewburgh-ny.gov>

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:

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]

++++++++++

From: McKean, Elizabeth <records@cityofnewburgh-ny.gov>

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

++++++++++

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

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

++++++++++

From: Mercer, Janet (DOS) <Janet.Mercer@dos.state.ny.us>

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.(

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.

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.

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

++++++++++

from: Vitek, Autumn <AVitek@cityofnewburgh-ny.gov>

to: <Jane Johnston>

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.

I have urgently requested that any contracts and/or related paperwork… 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.

Thank you for your patience.

Sincerely,

GEOFFREY E. CHANIN

Corporation Counsel

GEC/av

++++++++++

From: Jane Johnston

Fri, Aug 22, 2008 at 1:49 PM

To: “Vitek, Autumn” <AVitek@cityofnewburgh-ny.gov>

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]

++++++++++

From: Jane Johnston

Fri, Aug 22, 2008 at 4:26 PM

To: “Mercer, Janet (DOS)” <Janet.Mercer@dos.state.ny.us>

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.

8/22/08: am happy to report that it looks very promising that the request will soon be answered.

Kind Regards,

A. Jane Johnston

[Quoted text hidden]

++++++++++

From: Jane Johnston

Mon, Sep 15, 2008 at 7:59 AM

To: “Vitek, Autumn” <AVitek@cityofnewburgh-ny.gov>

Subject: Your FOIL Request dated June 12, 2008

Dear Mr. Chanin,

It is over three weeks since I have heard from you

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]

++++++++++

[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.

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.

++++++++++

Subject: FOIL Request

From: Jane Johnston

Sun, Sep 21, 2008 at 8:34 PM

To: “Vitek, Autumn” <AVitek@cityofnewburgh-ny.gov>, “Vitek, Lorene” <LVitek@cityofnewburgh-ny.gov>, “McKean, Elizabeth” <records@cityofnewburgh-ny.gov>

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 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.

(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

Newburgh, NY 12550

++++++++++

From: Jane Johnston

Sun, Sep 21, 2008 at 8:48 PM

To: “Vitek, Autumn” <AVitek@cityofnewburgh-ny.gov>, “Vitek, Lorene” <LVitek@cityofnewburgh-ny.gov>, “McKean, Elizabeth” <records@cityofnewburgh-ny.gov>

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.

(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

Newburgh, NY 12550

++++++++++

From: Vitek, Lorene <LVitek@cityofnewburgh-ny.gov>

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.

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

++++++++++

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.

Three weeks have elapsed since this email and I have received no response or acknowledgment.

Kind regards,

A. Jane Johnston

++++++++++

Subject: FOIL Request

From: Jane Johnston

Wed, Oct 22, 2008 at 9:26 AM

To: “Vitek, Autumn” <AVitek@cityofnewburgh-ny.gov>, “Vitek, Lorene” <LVitek@cityofnewburgh-ny.gov>, “McKean, Elizabeth” <records@cityofnewburgh-ny.gov>

Dear Mr. Chanin,

One month ago, I made two FOIL requests;

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

++++++++++

Subject: FOIL request

From: Jane Johnston

Wed, Oct 22, 2008 at 9:27 AM

To: “Vitek, Autumn” <AVitek@cityofnewburgh-ny.gov>, “Vitek, Lorene” <LVitek@cityofnewburgh-ny.gov>, “McKean, Elizabeth” <records@cityofnewburgh-ny.gov>

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]

++++++++++

RE: Question regarding timely response to FOIL/further information

Wed, Oct 22, 2008 at 2:06 PM

++++++++++

Subject: FOIL request of October 22, 2008

From: Vitek, Autumn <AVitek@cityofnewburgh-ny.gov>

Mon, Nov 10, 2008 at 3:44 PM

To: <Jane Johnston>

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.

we will provide them to you in approximately ten (10) days or less.

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.

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

++++++++++

Subject: FOIL request of October 22, 2008

From: Jane Johnston

Mon, Nov 10, 2008 at 3:55 PM

To: “Vitek, Autumn” <AVitek@cityofnewburgh-ny.gov>

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]

++++++++++

Subject: FOIL request of October 22, 2008

From: Jane Johnston

Mon, Dec 1, 2008 at 5:28 PM

To: “Vitek, Autumn” <AVitek@cityofnewburgh-ny.gov>

Dear Mr. Chanin,

I would appreciate receiving the correspondence mentioned in the first paragraph as soon as possible (you had promised within ten days.)

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 <AVitek@cityofnewburgh-ny.gov> wrote:

[Quoted text hidden]

++++++++++

[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.

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 <AVitek@cityofnewburgh-ny.gov>

Tue, Dec 23, 2008 at 12:05 PM

To: <Jane Johnston>

Cc: “Vitek, Lorene” <LVitek@cityofnewburgh-ny.gov>, “Zapata, Lourdes” <LZapata@cityofnewburgh-ny.gov>

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.

We will treat your request as a continuing one

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.”

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” <AVitek@cityofnewburgh-ny.gov>

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 <AVitek@cityofnewburgh-ny.gov>

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

Subject: FOIL request of October 22, 2008

To: <Jane Johnston>

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

FOIL request

++++++++++

Subject: FOIL request

Jane Johnston

Tue, Dec 15, 2009 at 1:02 AM

To: “Vitek, Autumn” <AVitek@cityofnewburgh-ny.gov>

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” <AVitek@cityofnewburgh-ny.gov>, “Vitek, Lorene” <LVitek@cityofnewburgh-ny.gov>, “McKean, Elizabeth” <records@cityofnewburgh-ny.gov>

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.

(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

Newburgh, NY 12550

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Subject: FOIL Request

From: Jane Johnston

Wed, Dec 16, 2009 at 9:42 PM

To: “Vitek, Autumn” <AVitek@cityofnewburgh-ny.gov>

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

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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.