Analysis: N.Y. public record inquiries grow more difficult
For the better part of 2012, in order to receive copies of any town document, a request must be made in writing in Hoosick. "Everyone should be on the same page," said town Supervisor Keith Cipperly, defending the across-the- board policy. "That's where I'm coming from."
Susan Stradinger, the town clerk and records officer, said a written request was necessary for copies of any record. Speaking mid-September, she said the policy was per the town board, and not on her own volition.
"As far as I'm concerned, it's the norm," said Cipperly, when contacted by telephone Friday to explain the policy. "FOIL it, you'll get your information." It may take time, however, as some residents said the written procedure has caused delay and confusion.
While legal, the policy "seems administratively burdensome," said Camille Jobin-Davis of the state Committee on Open Government. The assistant director of the state advisory committee said she had heard of other municipalities following the same procedure, but said she had not heard the reasoning.
Statutory path under NYS law
New York's Freedom of Information Law (FOIL) details a written procedure for obtaining public records entailing a letter to the agency's records management officer requesting the document. The law requires a response within five business days, with the agency either making the record available, denying the request, or acknowledging receipt of the request and giving a cost of reproduction and date when the records will be available. State law allows agencies like towns to charge up to 25 cents per page to photocopy.
The written procedure is not required, but can be. In practice - as well as in a model local law provided for public agencies by the state - most municipalities allow a verbal request for records that are readily available. While a FOIL request necessitates the statutory procedure and a written response within five days, an informal verbal request can be fulfilled by photocopying, faxing, or emailing the record that day.
Jobin-Davis said "technically, legally speaking," an agency had "every authority" to follow the statutory procedure. But she said the process for readily available public documents, such as meeting minutes or local laws, seemed burdensome.
Cipperly said there had been a flurry of written requests "every single week" earlier this year from members of a committee set up to study the armory as a town building, which he indicated had taken up clerical time, but Cipperly did not directly respond when asked whether informal verbal requests would have been easier to fulfill.
Pointing to a recent substantive update to state Open Meetings Law, passed by the Legislature and signed into law late last year, Jobin-Davis said the idea of "proactive disclosure" of public documents online "would reduce some of that administrative burden."
Acknowledging the electronic age, the new section of law went into effect this February and requests that records and proposed laws or resolutions be made available in advance of board meetings "to the extent practicable," if the agency regularly maintains a website and has access to high-speed internet. Most municipalities have active websites, but compliance with the updated law varies widely. Hoosick's town website is updated with community announcements but not meeting minutes or resolutions.
While the stated purpose was to promote transparency and participation in government, and to reduce waste, Cipperly characterized the amendment as a mandate that would reduce photocopying revenue to the town.
Yet written requests for one- or two-page records could cost the town more in time and mailing expense than the 25-cent per page photocopy fee.
Requesting everything in writing can also cause confusion.
In July, Buskirk resident Michael Batcher attended a town board meeting to ask about the town's records policy after he requested proposed zoning changes.
In a telephone interview last month, Batcher said he heard about the zoning revisions so he requested the proposed law as well as the county review. Batcher said he received a response from town Attorney Debra Young, who responded the records didn't exist. A hearing on the proposed amendments, which dealt with site setbacks, had been rescheduled, and the local law later passed. "There was no opportunity for me to get those," Batcher said at the July meeting, "because when I asked they didn't exist," and when they did exist, he did not know to ask.
Batcher said he didn't know what the zoning changes even entailed, making it difficult for him to request copies for review. "It's definitely not open government," he said. Even when a resident knows what they want, a written request can take months.
A former town board member, Kevin O'Malley, said he requested a video recording of a board meeting where his cousin, U.S. Army Col. Ed Reinfurt, spoke in favor of the town taking ownership of the armory - a hot button topic earlier this year.
Despite the fact that O'Malley indicated he wanted a copy of the video that evening, he said he was told to submit a written request. When he received the video, after nearly three months, the armory had become a moot point. In another instance, O'Malley said a request was returned because he didn't address the correct person, at which point he gave up.
Cipperly said O'Malley hadn't followed procedure and didn't specify what he wanted, as in the type of video format. "It's not Charlie (Filkins) he has to FOIL, it's the town he has to FOIL," Cipperly said, referring to the verbal request to Filkins, who had been recording town meetings at that time.
Cipperly disagreed the records policy barred access to government, and said all meetings were open. If you want a record afterward, however, that request must be made in writing.
"We're not breaking the law," said Cipperly.
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