The Newburgh Advocate » Government Transparency

Keep public records public

Newburgh Advocate — Thu, 06 May 2010 14:31:20 +0000

5.6.10: Keep public records public: From today’s Guardian, article on the Supreme Court case that may take the “public” out of “public records.” Dan Kennedy writes, “Information technology has given us the tools to govern ourselves more openly and transparently than we ever have before. It would be sadly ironic if that technology is now used as an excuse to cover up public records lest they become too public for those who wish to take part in democracy, but who lack the courage of their convictions.” Source – http://www.guardian.co.uk/commentisfree/cifamerica/2010/may/06/supreme-court-public-records

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.

Inaugural Closed Door Award

Newburgh Advocate — Thu, 22 May 2008 02:51:31 +0000

Today’s post marks the inauguration of the “Closed Door Award,” an award that is given to distinguish gratuitous use of executive session by a governmental body.

The gratuitous use of executive session is anathema to good government and open government.

Now there is a way to recognize when a governmental body inappropriately shuts the public out. Feel free to give your board, council, or committee an award each time you witness gratuitous use. Count up the worst offenders by year’s end and perhaps we’ll have the opportunity to make another award or form of recognition for the Most Closed Door Awards.

Today’s Closed Door Award goes to the Orange County Legislature’s Physical Services Committee, for calling an executive session for Lenny Llerena’s presentation “Update re: hangars to be built at Airport.”

Mr. Llerena’s presentation was first on the agenda, and it was only after the presentation was set up, complete with powerpoint visuals projected onto a screen, that the call for “executive session” was made. There was a pause until an administrative assistant helpfully suggested the rationale of “contract negotiations.”

I have made an artistic video to commemorate this award, complete with the audio of Robert Freeman, Executive Director of the New York State Committee on Open Government, accompanied by the visuals of the video I recorded while waiting at the Orange County Government Center for the Physical Services Committee to return from executive session. Mr. Freeman was the guest of the Newburgh Free Library, where this audio comes from, in the fall of 2006.

Congratulations!

WPvideo 1.10

Towards Good Decisionmaking on an OCCC Newburgh Site

Newburgh Advocate — Thu, 05 Oct 2006 22:43:42 +0000

According to the agenda for the Orange County Legislature’s Regular Session, this afternoon at 3:30 p.m. there will be several competing resolutions on the docket.

From the Physical Services Committee and the Ways and Means Committee, agenda item number 7 to be discussed and voted upon is:

Resolution of the Orange County Legislature selecting “the Key Bank/Maple Building” as the proposed site for the Orange County Community College facilities in the City of Newburgh and directing JMZ Architects and Planners, P.C. to complete its study

Also on the agenda is item number 8, from the Education and Economic Development Committee, which reads:

Resolution of the Orange County Legislature selecting “the Broadway site” as the proposed site for the Orange County Community College facilities in the City of Newburgh and directing JMZ Architects and Planners, P.C. to complete its study

The question of where to site the Orange County Community College is a major decision, as what is at stake is over $30 Million of New York State Taxpayers’ Money, over $30 Million of Orange County Taxpayers’ Money, in addition to potential other expenses by City of Newburgh residents, as well as $10 Million of privately donated funds.

Hours of effort, consideration and debate have already been expended by our hardworking Orange County Legislators as they attempt to make the best possible decision. As they move forward at this point, The Newburgh Advocate wishes to restate questions that have arisen during this process.

1. What is the cost of Eminent Domain?

It remains true that the Broadway Site is the only site that would require additional demolition in Newburgh’s Historic District, Eminent Domain and Relocation of Displaced Families. This would not only be required for the initial construction of the College, but also for any additional expansion, expansion which has already been unanimously approved by the Legislature as part of OCCC’s master plan.

On March 25, 2006, more than six months ago, a Neighbors Meeting was held in the City of Newburgh by citizens of the City of Newburgh to discuss the OCCC site selection. At that meeting one city resident raised this point:

AUDIENCE QUESTION: We are not divisive [about the college site], it is coming from our city. The majority of the people who are living there [at the Broadway site] would have to be displaced. Déjà vu: my family was displaced by Urban Renewal. People who are directly affected will benefit, [but] the people who are most affected, will they benefit?

Previously, on March 22, 2006, the City of Newburgh held a Public Hearing about the College. Instead of posting minutes from that meeting, the City issued a “Summary Report” that listed thematically the concerns that were raised and the City administration’s response. This is their response regarding Eminent Domain/Displacement:

The City strongly feels that the urban campus design model will minimize the need for relocation of current residents. Should relocation be required, however, it is the County’s responsibility to ensure that high quality, affordable alternative housing is identified for any Newburgh residents who may be displaced as a result of this project. These residents will be called upon to make sacrifices which deserve the utmost respect and attention of all parties involved. The City of Newburgh is prepared to utilize all of its resources and efforts to identify opportunities for relocation in support of the County’s efforts in this regard. This must be done early in the project and in collaboration with residents.

Then, as now, there has been the question of a “suburban” vs. “urban” campus. However, bear in mind that the entire City of Newburgh is, in fact, URBAN, and that the entire city can be walked from one side to the other in about twenty minutes.

2. The City of Newburgh held a press conference yesterday—the day before the Legislative vote—with new cost estimates for Broadway.

What took the city so long to come up with “new” cost estimates? The mayor was on the siting committee and could have provided “new figures” six months ago.

3. Why was the Site Selection Committee removed from the process of evaluating and recommending the best site?

The Site Selection Committee was carefully chosen with a diverse group of experts to take an objective look at the various sites. Orange County residents spent hundreds of thousands of dollars to cover the expenses of this Committee, including consultants’ work with considerable expertise. However, the Site Selection Committee has not been a part of the process since February 2006 and was never consulted for a final recommendation.

Most likely the Site Selection Committee Members were chosen not only for their expertise but also for their critical thinking skills. Critical thinking is a crucial skill in good decision-making, especially when so many millions of dollars are at stake and the impact of a decision affects so many in the long-term. Thus it may be worthwhile to consider one of the hallmarks of critical thinking, being reasonable:

Be on the lookout for reasonable and unreasonable behaviors — yours and others. Look on the surface. Look beneath the surface. Listen to what people say. Look closely at what they do. Notice when you are unwilling to listen to the views of others, when you simply see yourself as right and others as wrong. Ask yourself at those moments whether their views might have any merit. See if you can break through your defensiveness to hear what they are saying. Notice unreasonableness in others. Identify times when people use language that makes them appear reasonable, though their behavior proves them to be otherwise. Try to figure out why you, or others, are being unreasonable. Might you have a vested interested in not being open-minded? Might they?

One of the hallmarks of a critical thinker is the disposition to change one’s mind when given good reason to change. Good thinkers want to change their thinking when they discover better thinking. They can be moved by reason. Yet, comparatively few people are reasonable. Few are willing to change their minds once set. Few are willing to suspend their beliefs to fully hear the views of those with which they disagree. How would you rate yourself?

Questions you can ask to discipline your thinking:
What precise question are we trying to answer?
Is that the best question to ask in this situation?
Is there a more important question we should be addressing?
Does this question capture the real issue we are facing?
Is there a question we should answer before we attempt to answer this question?
What information do we need to answer the question?
What conclusions seem justified in light of the facts?
What is our point of view? Do we need to consider another?
Is there another way to look at the question?
What are some related questions we need to consider?
What type of question is this: an economic question, a political question, a legal question, etc.?

4. Why has the Armory Site not been considered, especially in comparison to the promotion of the Broadway Site?

Back in March, 2006, at the Neighbors Meeting, there was overall consensus that the Armory would be most desirable as it provided the most space, there were no Eminent Domain, Displacement, or Historic Demolition issues, and it was and remains the cheapest site:

QUESTION: [The] right deal seems to be obvious. I don’t know why you’re considering anything else. [With regards to the Armory] What more could you ask for? 40 acres right across the street.

WE ARE GOING TO HOLD YOU RESPONSIBLE.

No choice – Where this should go.

One citizen even suggested the Broadway Site be removed from consideration at that point.

QUESTION: Could the controversial site [Broadway] be removed [from consideration]?

LEGISLATOR: It’s not controversial to us.

Six months later, at the second Neighbors Meeting on this issue held at the Newburgh Free Library September 23, 2006, there was once again widespread consensus that the Armory was the best site.

Antony Takahashi, a financial analyst, provided an cost comparison of the various sites, with the cheapest in order being first the Armory, then Key Bank, and the most expensive by far being the Broadway Site.

5. What about Economic Development?

One of the arguments sometimes mentioned in support of one site over the other is potential Economic Development.

From a cursory review of the academic literature regarding Community Colleges and Economic Development, when academic researchers consider the potential positive effects to the local economy of Community Colleges the economic impact is measured in terms of the increase in “Human Capital”—i.e., the increased earnings and contributions of a more educated workforce—the Community College students/alumni themselves.

There is no question that Community Colleges have an extraordinarily important role to play in terms of meeting the educational needs of our County’s residents and transforming lives through greater earnings potential, better critical thinking skills, etc.

However, arguments put forth so far that one site vs. another will contribute to greater “economic development” in terms of retail or restaurants or construction jobs have been anecdotal and not supported by citations or economists.

It is the economic development of the students, in terms of increased capital, that is well-documented and supported by years of peer-reviewed academic research.

Quoting from Economic development, human capital theory and the community college., By: Hlavna, Deborah P., Community College Review, 00915521, Spring92, Vol. 19, Issue 4:

Economic Development and the Community College
Community college collaboration with business and industry for the training of the work force and the economic development of the community are among the important recent developments in the community college movement (CFCC, 1988). One example of this partnership is the pairing of business and industry with the community college to offer literacy education.

Literacy training is a form of general training that benefits not only the current employer but future employers as well as society at large. According to Breneman and Nelson (1981), individuals who are literate are less likely to require income transfers (welfare, food stamps, rent subsidies) from the government to survive. In the case of literacy training, though the current employer benefits, the benefits to society as a whole can normally be considered to exceed those that will accrue to the employer. Society will now have an individual who will be more productive and adaptable to the changes occurring in his/her environment. Some of the reasons adults may lack literacy skills could be due to a previous failure of the public school system, a lack of available schooling, or undiagnosed learning disabilities. In cases such as these, society has a responsibility to be fair (equitable) and offer a second chance. Therefore, literacy should be subsidized by the community college for business, industry and society.

Customized/contract training courses that are offered by the community college for the benefit of business and industry fall into the category of firm-specific training. These customized/contract training courses prepare students with a fairly narrow range of job skills and, according to human capital theory, these courses should be financed either by the business or a combination of the business and the employee who is enrolled in the course (Breneman & Nelson, 1981; Flanagan et al., 1989). Society does benefit from the increased productivity of the labor force. In turn, this increased productivity may be translated into higher company profits and business expansion. This business expansion would be accompanied by the employment of more workers and an expansion of the community college tax base and the accompanying increased taxes received from that tax base (Breneman & Nelson, 1981; Flanagan, et al., 1989; Kalamas & Warmbrod, 1987). In a time of economic downturn, firms with highly trained and productive employees are reluctant to lay off these highly skilled employees (Flanagan et al., 1989).

This results in benefits to society in the form of a lower unemployment rate and lower income transfer payments. For the community college to subsidize the educational activity of specific customized training in the same amount as general training creates a dilemma. Although society does benefit from more productive workers, it is not equitable or efficient to ask taxpayers, as well as other competing companies, to subsidize the competition. Since one company receives the primary benefit of the educational activity, the efficiency principle requires that the business or industry support these customized/contract courses to the extent of covering the full costs of the programs and that includes all of the developmental costs of the course, overhead, student tuition, and instructor salaries (Breneman & Nelson, 1981; Grubb & Stern, 1989; Pincus, 1986). If the customized/contract training courses are a part of a concerted economic development strategy of the area, then it may be appropriate for the community college to subsidize some of the costs as long as it is determined that the social benefits exceed the costs (Breneman & Nelson, 1981). This is a decision that is not made by the community college alone.

Other economic development activities–such as small business and data base development–benefit specific employers and the local community as well. These activities expand the tax base, reduce public expenditures for income transfers and improve the quality of life. On grounds of efficiency, the local community college should pick up the majority of the costs of those services offered (Breneman & Nelson, 1981; Kalamas & Warmbrod, 1987).

Economic development activities do have a place at the community college. General training activities that give individuals skills which will improve their current and future job performance and prospects are economic development activities that complement the mission of the community college: to help people improve job skills and prepare for employment. According to human capital theory, these educational skills are transferable to other employers and, as a result, it is not in the best interest of the business to pay for this form of training. These forms of economic development activities need to be subsidized by the community college. Firm-specific training activities should not be subsidized by the community college and, in turn, by the taxpayers of that area unless they are part of a specific economic development strategy. Community college economic development activities should not benefit one employer at the expense of other employers. Customized/contract courses should be offered but the employer/s and/or potential students should cover all of the costs of developing and offering the courses.

Community colleges are an important component in the economic development process and human capital theory and economic theory justify their involvement. Care should be taken, however, to assure that economic development activities are for the benefit of the total community college district.

In conclusion, it may be prudent, before committing millions of dollars of County taxpayers’ money and future money to investing in one particular site over another, to consider the following:

SCEINTIFIC METHOD:
III. Common Mistakes in Applying the Scientific Method

As stated earlier, the scientific method attempts to minimize the influence of the scientist’s bias on the outcome of an experiment. That is, when testing an hypothesis or a theory, the scientist may have a preference for one outcome or another, and it is important that this preference not bias the results or their interpretation. The most fundamental error is to mistake the hypothesis for an explanation of a phenomenon, without performing experimental tests. Sometimes “common sense” and “logic” tempt us into believing that no test is needed. There are numerous examples of this, dating from the Greek philosophers to the present day.

Another common mistake is to ignore or rule out data which do not support the hypothesis. Ideally, the experimenter is open to the possibility that the hypothesis is correct or incorrect. Sometimes, however, a scientist may have a strong belief that the hypothesis is true (or false), or feels internal or external pressure to get a specific result. In that case, there may be a psychological tendency to find “something wrong”, such as systematic effects, with data which do not support the scientist’s expectations, while data which do agree with those expectations may not be checked as carefully. The lesson is that all data must be handled in the same way.

Please note, additional pertinent video footage from public meetings has been posted here.

Postscript: What is a Suburb?

The City administration’s contention that the Armory is “suburban” while the other sites are “urban” is yet to be supported by definition or documentation. Consider the following notes on suburbs while viewing the maps below of the three potential sites, and the sites in context.

Suburbs are inhabited districts located either inside a town or city’s outer rim or just outside its official limits (the term varies from country to country), or the outer elements of a conurbation.

The presence of certain elements (whose definition varies amongst urbanists, but usually refers to some basic services and to the territorial contiguity) identifies a suburb as a peripheral populated area with a certain autonomy, where the density of habitation is usually lower than in an inner city area, though state or municipal house building will often cause departures from that organic gradation. Suburbs have typically grown in areas with an abundance of flat land near a large urban zone, usually with minimal traditions of citizens clustering together for defence behind fortified city walls, and with transport systems that allow commuting into more densely populated areas with higher levels of commerce.

Inhabitants of these areas generally identify with the central city, and often consider themselves to be inhabitants of the central city. Indeed, neighbourhoods within a city proper that share physical and social characteristics with the suburbs as already described — such as a relatively low residential density and a scarcity of industrial properties — are also often called suburbs.

Typically, many post-World War II American suburbs have been characterized by:

* Lower densities than central cities, with single-family homes predominating.
* Zoning patterns that separate residential and commercial development as well as different intensities and densities of development.
* Shopping malls and strip shopping centers instead of a downtown shopping district.
* Streets lined by off-street car parking or vegetation instead of buildings.
* A predominantly white or middle- or upper-class population, with notable exceptions in various older cities (e.g., Ford Heights, Illinois, a predominantly black suburb of Chicago and a municipality with one of the lowest per capita incomes in the U.S).
* A street network designed to conform to a hierarchy, including residential streets that curve and often end in cul-de-sacs, in place of the grid pattern common to most central cities and pre-World War II suburbs.
* Ready access to freeways or tollways.
* Limited access to public transit, often requiring a long walk, several transfers, and generally poor and infrequent service.
* The importance of public space reduced in favor of private property.
* Low crime-rate.
* Low traffic-rate & low pollution.

THE SITES CONSIDERED

Wideshot of the City of Newburgh with the three potential sites marked with red thumbtacks.

The Keybank Site, currently endorsed by two of the three Orange County Legislature Committees that made recommendations on site selection.

The Broadway Site, endorsed by one of the three Orange County Legislature Committees.

The Armory Site.

On the Table Today

Newburgh Advocate — Thu, 31 Aug 2006 23:07:32 +0000

Excerpted discussion from the Education and Economic Development Committee Meeting of the Orange County Legislature held Wednesday, August 30, 2006. This discussion concerns the site selection of the Newburgh campus of SUNY Orange.

WPvideo 1.10

Is this Open Government?

Newburgh Advocate — Sun, 20 Aug 2006 23:09:54 +0000

City of Newburgh Industrial Development Agency:
Mayor Nicholas Valentine, Chairman
Councilwoman Regina Angelo
Martin Boone
Councilman George Bowles, Jr.
Councilman Salvatore Cracolici
Councilwoman Mary Ann Leo-Dickinson
Darren McCurry

On July 31, 2006, four documents were recorded and filed with the Orange County Clerk’s Office in Goshen, New York.

Document 1: Deed transferred from the City of Newburgh Industrial Development Agency to 132 Broadway Associates, LLC
File #20060082551, Deed C/BK 12218 PG 0527, Recorded/Filed 07/31/2006/14:31:07 [Bold emphasis below is added by The Newburgh Advocate]

WITNESSETH, that the Grantor [CITY OF NEWBURGH INDUSTRIAL DEVELOPMENT AGENCY], in consideration of $10.00, and other good and valuable consideration, paid by the Grantee [132 BROADWAY ASSOCIATES, LLC], does hereby remise, release and quitclaim upon the Grantee, is successors, or assigns of the Grantor forever,

ALL those certain plots, pieces or parcels of land, with the buildings and improvements thereon erected, situate, lying and being in the State of New York, County of Orange, and the City of Newburgh, more particularly described on Schedule A…

Schedule A lists:

1. 8-12 Lander St. (SBL:30-3-22)
2. 14-16 Lander St. (SBL: 30-3-21)
3. 132-134 Broadway (SBL: 30-3-24)
4. 136 Broadway (SBL: 30-3-25)
5. 138 Broadway (SBL: 30-3-26)
6. 140 Broadway (SBL: 30-3-27)
7. 142 Broadway (SBL: 30-3-28)
8. 142A Broadway (SBL: 30-3-29)
9. 144 Broadway (SBL: 30-3-30)
10. 148 Broadway (SBL: 30-3-32)
11. 6-8 Johnston St. (SBL: 30-3-33)
12. 14A-16 Johnston St. (SBL: 30-3-37)

The Grantee [132 Broadway Associates] herein shall undertake, at its sole cost and expense, to construct a building (or buildings) with approximately one hundred thousand (100,000) square feet in the aggregate suitable for commercial, light industrial, office, educational, and/or retail use, or a combination thereof, in accordance with the performance schedule attached hereto and made a part here of as Schedule B together with an area of public space approved by the City of Newburgh (such construction is hereinafter referred to as the “PROJECT”). IDA shall cooperate fully with the Grantee herein in any and all applications, proceedings and appeals made or prosecuted by or on behalf of the Grantee herein in connection with the PROJECT, and IDA agrees to execute and deliver all documents, consents or authorizations reasonably required of IDA by any governmental authority with respect thereto.

Schedule B states:

PROJECT Progress Benchmarks

1. Complete demolition of buildings – 90 days from June 30, 2006.
2. Receipt of Planning, Zoning and ARC approvals – 180 days from June 30, 2006
(GRANTEE [132 Broadway Associates, LLC]) must apply for same within 60 days of June 30, 2006).
3. Issuance of Building Permit – 9 months from June 30, 2006.
4. Issuance of Certificate of Occupancy for all of PROJECT – 30 months from June 30, 2006. A temporary Certificate of Occupancy shall be acceptable provided it is replaced with a permanent Certificate of Occupancy within sixty (60) days of its issuance.

CITY OF NEWBURGH INDUSTRIAL DEVELOPMENT AGENCY
By: [signed] Robert H. McKenna
Administrative Director

As of the date which is thirty (30) months from June 30, 2006, if it is determined upon an inspection by the City of Newburgh Code Compliance Supervisor that the performance requirements of said Schedule B have not been completed timely or the completion time for such has not been extended by IDA in writing, the Grantee [132 Broadway Associates, LLC] herein shall, within ten (10) business days fro the service of a notice of said determination upon it… reconvey good and marketable title to the property described in Schedule A herein to IDA.

…TOGETHER with all right, title and interest if any, of [the IDA] in an to any streets and roads abutting the above described premises to the center lines thereof,
TOGETHER with the appurtenances and all the estate and rights of the Grantor in and to the said premises,
TO HAVE AND TO HOLD the premises herein granted unto the Grantee, its heirs, successors and assigns forever.

IN WITNESS WHEREOF, Grantor has hereunto set its hand and seal the day and year first above written.

Document 2: Mortgage between MORTGAGOR: 132 Broadway Associates, LLC; Gemma Development Company, LLC; 10 Johnston Street Associates, LLC; RAC Development of Newburgh, LLC; AND the City of Newburgh Industrial Development Agency and MORTGAGEE: Manufacturers and Traders Trust Company
File #20060082552, Mort/BK 12218 PG 0534, Recorded/Filed 07/31/2006/14:31:07 [Bold emphasis below is added by The Newburgh Advocate]

(b) The obligations and agreements of the Agency contained herein or therein shall not constitute or give rise to an obligation of the State of New York or the City of Newburgh, New York, and neither the State of New York or the City of Newburgh, New York shall be liable thereon… Neither the members of the Agency, nor any person executing this Mortgage on its behalf shall be liable personally under this Mortgage nor recourse shall be had for the payment of the principal or interest on the indebtedness evidence by the note or any claim based on the mortgage or otherwise in respect hereof, or based upon or in respect to this Mortgage or any modification of or supplement hereto against any past, present or future member, officer, agent or employee, as such, of the Agency or any successor or political subdivision, either directly or through the Agency or any such successor, all such liability of such members, officers, agents (except for the Borrower), servants and employees being, to the extent permitted by law, expressly waived and released by the acceptance hereof and as part of the consideration for the execution of this Mortgage. Any judgment or decree shall be enforceable against the Authority only to the extent of its interest in the property and any such judgment shall not be subject to execution on or by a lien on assets of the agency other than its interest in the property.

IN WITNESS WHEREOF, this Mortgage has been duly executed by Mortgagor the day and year first above written. [June 30, 2006]
132 BROADWAY ASSOCIATES, LLC
By: [signed] Robert Carchietta, Manager/Member

GEMMA DEVELOPMENT AGENCY, LLC
By: [signed] Robert Carchietta, Member

10 JOHNSTON STREET ASSOCIATES, LLC
By: [signed] Robert Carchietta, Member

RAC DEVELOPMENT OF NEWBURGH, LLC
By: [signed] Robert Carchietta, Member

37. PROVISIONS RELATING TO THE AGENCY. Notwithstanding any other terms or conditions contained in this Mortgage:
(a) This Mortgage is execute by the Agency solely for the purpose of subjecting its rights to the rights of the Mortgagee and for no other purpose. All representations, covenants, warranties are hereby deemed to have been given by the Borrower and not by the Agency.

27. (c) Upon the happening of an Event of Default, whether or not foreclosure proceedings have been instituted, Mortgagor shall, upon demand, surrender possession of the Premises to Mortgagee.

26. ENVIRONMENTAL, REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION. Mortgagor represents and warrants, and continues to represent and warrant as long as this Mortgage is in effect, to Mortgagee that (a) to the best of Mortgagee’s knowledge, Mortgagor and the Premises are in compliance with each statute, regulation or other law and each judgment, order or award of any court, agency or other governmental authority or of any arbitrator (individually an “Environmental Requirement”) relating to the protection of any water, water vapor, land surface or subsurface, air, fish, wildlife, biota or other natural resources or governing the use, storage, treatment, generation, transportation, processing, handling, production or disposal of any chemical, natural or synthetic substance, waste, pollutant or contaminant (collectively “Regulated Materials”), (b) Mortgagor has not been charged with, or has received any notice that such Mortgagor is under investigation for, the failure to comply with any Environmental Requirement, nor has Mortgagor received any notice that Mortgagor has or may have any liability or responsibility under any Environmental Requirement with respect to the Premises or otherwise, (c) to the best of Mortgagee’s knowledge, the Premises have ever been used for (i) the storage, treatment, generation, transportation, processing, handling, production or disposal of Regulated Materials, except as permitted by law, (ii) a landfill or other waste disposal site or (iii) military purposes, (d) no underground storage tanks are located on the Premises, (e) the environmental media at the Premises do not contain Regulated Materials beyond any legally permitted level, (f) to the best of the Mortgagee’s knowledge, there has never been any release, threatened release, migration or uncontrolled presence of any Regulated Materials on, at or from the Premises or, to the knowledge of the Mortgagor, within the immediate vicinity of the Premises and (g) Mortgagor has not received any notice of any such release, threatened release, migration or uncontrolled presence… If at any time Mortgagor obtains any evidence or information which suggests that potential environmental problems may exist on, at or about the Premises, Mortgagee may request Mortgagor, at Mortgagor’s own cost and expense, to conduct and complete investigations, studies, sampling and testing with respect to the Premises requested by Mortgagee. Mortgagor shall promptly furnish to Mortgagee copies of all such investigations, studies, samplings and tests. Mortgagor shall (a) conduct and complete all such investigations, studies, samplings and testing, and all remedial, removal and other actions necessary with respect to the Premises, in accordance with all applicable Environmental Requirements and promptly furnish to Mortgagee copies of all documents generated in connection therewith and (b) defend, reimburse, indemnify and hold harmless Mortgagee, its employees, agents, officers and directors, from and against any claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses of whatever kind or nature, known or unknown, contingent or otherwise, arising out of, or in any way related to, the violation of, or other liability or responsibility under, any Environmental Requirements, or the release, threatened release, migration or uncontrolled presence of any Regulated Materials on, at or from the Premises including attorney and consultant fees, investigation and laboratory fees, court costs and litigation expenses…

CITY OF NEWBURGH INDUSTRIAL DEVELOPMENT AGENCY
By: [signed] Robert H. McKenna
Administrative Director

WITNESSETH, to secure (a) the payment of indebtedness in the principal sum of ONE MILLION FOUR HUNDRED EIGHTY THREE THOUSAND ($1,483,000.00) DOLLARS, lawful money of the United States, together with interest thereon and other charges with respect thereto, to be paid according to certain demand note, dated on or about June 30, 2006, made and delivered by Mortgagor to Mortgagee or (the “Note”)… Mortgagor hereby mortgages to Mortgagee, as continuing and collateral security for the payment of any and all indebtedness, liabilities and obligations of Mortgagor to Mortgagee… the premises described on the attached Schedule A. [Note; same properties listed in Schedule A above.]

Document 3: General Assignment of Rents between ASSIGNOR: 132 Broadway Associates, LLC, and ASSIGNEE: Manufacturers and Traders Trust Company
File #20060082554, A/LR/BK 12218 PG 0601, Recorded/Filed 07/31/2006/14:31:07 [Bold emphasis below is added by The Newburgh Advocate]

WHEREAS, Assignee desires to grant Assignor a conditional license to collect and use the income derived form the Premises and to take certain leasing actions in the ordinary course of business.

4. …monies in the amount of $1,483,000.00 were loaned thereon and the mortgage tax was duly paid.
Mortgage tax paid $15,571.50.

4. LICENSE TO TAKE CERTAIN LEASING ACTIONS.

(b) The license granted by Assignee under this Section 4 does not extend to… (iv) the grant of any option to purchase any part of the Premises or any right of first refusal or (v) any Leasing Action that results in a Lease (A) to an affiliate of any Assignor, (B) with a rental rate which is less than a reasonable market rental rate, (C) permitting prepayment of rent more than one month in advance or (D) demising more than twenty percent (20%) of the rentable space of the Premises or such higher or lower percentage as Assignee may from time to time agree to in writing…

255 AFFIDAVIT OF EXEMPTION, GENERAL ASSIGNMENT OF RENTS, June 30, 2006

IN WITNESS WHEREOF, Assignor has executed this Assignment as of the day and year first above written.

132 BROADWAY ASSOCIATES
By: [signed] Robert Carchietta, Manager/Member

Document 4: Mortgage Consolidation Modification and Extension Agreement between 132 Broadway Associates, LLC; Gemma Development Company, LLC; 10 Johnston Street Associates, LLC; RAC Development of Newburgh, LLC; the City of Newburgh Industrial Development Agency AND Manufacturers and Traders Trust Company
File #20060082553, M AG/BK 12218 PG 0565, Recorded/Filed 07/31/2006/14:31:07 [Bold emphasis below is added by The Newburgh Advocate]

WITNESSETH:

WHEREAS, the Mortgagee is the owner and holder for the value of the following Mortgages, together with the notes or other evidences of indebtedness secured thereby, to wit:

2. Mortgage made by Mortgagor to Manufacturers and Traders Trust Company, in the principal sum of $293,500.00 dated June 23, 2004 and recorded in the Orange County Clerk’s Office on July 14, 2004, in Liber 11554 of Mortgages at Page 911, on which there is now due and owing the unpaid principal sum of $293,500.00.

3. Mortgage made by Mortgagor to Manufacturers and Traders Trust Company, in the principal sum of $293,500.00 dated June 23, 2004, and recorded in the Orange County Clerk’s Office on July 14, 2004, in Liber 11554 of Mortgages at Page 911, on which there is now due and owing the unpaid principal sum of $293,500.00.

4. Mortgage given by the Mortgagor to 132 Broadway Associates, LLC bearing even date herewith in the principal sum of $1,483,000.00 which is intended to be recorded simultaneously herewith.

WHEREAS, the Mortgagor has executed and delivered to the Mortgagee its Restated Non-Revolving Grid Note in the principal sum of $2,100,000.00 which Note is secured by the mortgages referred to and consolidated herein, with interest as stated in said Note and to be paid in accordance with said Note…

3. …a certain Mortgage Modification and Extension Agreement dated as of June 30, 2006, was entered into between MANUFACTURERS AND TRADERS TRUST COMPANY, as mortgagee, and 132 BROADWAY ASSOCIATES, LLC, as mortgagor, and is to be recorded simultaneously herewith, with regard to the following mortgages:

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements of the parties, and for the purpose of carrying out the intention above expressed, the Mortgages and the Mortgagor hereby mutually covenant and agree as follows:

That the liens of the said Mortgages, hereinabove mentioned, hereby are spread, consolidated and coordinated so that from and after the date hereof the same are hereby consolidated into one Mortgage covering the premises herein described, running concurrently as one Mortgage, and constituting a single first lien upon the premises mortgage in the amount of $2,100,000.00…

CITY OF NEWBURGH INDUSTRIAL DEVELOPMENT AGENCY
By: [signed] Robert H. McKenna
Administrative Director

2. RESTATED NON-REVOLVING GRID NOTE

Simultaneously herewith, the Mortgagor shall make and execute a Consolidated Mortgage Note in the principal amount of TWO MILLION ONE HUNDRED THOUSAND AND NO/100 ($2,100,000.00) DOLLARS to the Mortgagee.

RAC DEVELOPMENT OF NEWBURGH, LLC
By: [signed] Robert Carchietta, Member

3. MATURITY DATE

All of the principal, interest and any other charges that are owned under the Mortgages, and the Restated Non-Revolving Grid Note must be paid in full by December 31, 2006.

10 JOHNSTON STREET ASSOCIATES, LLC
By: [signed] Robert Carchietta, Member

36. MISCELLANEOUS. This Mortgage is absolute and unconditional…

GEMMA DEVELOPMENT AGENCY, LLC
By: [signed] Robert Carchietta, Member

IN WITNESS WHEREOF, this Mortgage has been duly executed by Mortgagor the day and year first above written.

In the Presence of:

MAUFACTURERS AND TRADERS TRUST COMPANY
By: [signed] Mark Stellwag, Admin. Vice President

132 BROADWAY ASSOCIATES, LLC
By: [signed] Robert Carchietta, Manager/Member

255 AFFIDAVIT, MORTGAGE MODIFICATION AND EXTENSION AGREEMENT

4. That new money in the amount of ONE MILLION FOUR HUNDRED EIGHTY THREE THOUSAND AND NO/100 ($1,483,000.00) DOLLARS was loaned thereon and the mortgage tax in the amount of $15,571.50 was duly paid.

1. Mortgage made by Mortgagor to Manufacturers and Traders Trust Company, in the principal sum of $30,000.00 dated May 24, 2005 and recorded in the Orange County Clerk’s Office on June 6, 2005, in Liber 11866 of Mortgages at Page 377, on which there is now due and owing the unpaid principal sum of $30,000.00. MORTGAGE TAX PAID $315.00
2. Mortgage made by Mortgagor to Manufacturers and Traders Trust Company, in the principal sum of $293,500.00 dated June 23, 2004 and recorded in the Orange County Clerk’s Office on July 14, 2004, in Liber 11554 of Mortgages at Page 911, on which there is now due and owing the unpaid principal sum of $293,500.00. MORTGAGE TAX PAID $3,082.00
3. Mortgage made by Mortgagor to Manufacturers and Traders Trust Company, in the principal sum of $293,500.00 dated June 23, 2004, and recorded in the Orange County Clerk’s Office on July 14, 2004, in Liber 11554 of Mortgages at Page 911, on which there is now due and owing the unpaid principal sum of $293, 500.00. MORTGAGE TAX PAID $3,082
4. Mortgage given by the Mortgagor to 132 Broadway Associates, LLC bearing even date herewith in the principal sum of $1,483,000.00 which is intended to be recorded simultaneously herewith.

All notes and Mortgages were combined, consolidated and made equal and coordinate liens on the above-described premises without priority of one over the other to constitute one first Note and Mortgage and single lien for the total sum of TWO MILLION ONE HUNDRED THOUSAND AND NO/100 ($2,100,000.00) DOLLARS upon said premises, which shall be paid with interest, in accordance with the terms and conditions of the said note and Mortgage.