Monday, April 26, 2010

State says CB7 may not withhold documents

Sent to elected officials:

The forwarded email below from the Executive Director of the Committee on Open Government confirms that Queens Community Board 7 is presently failing to comply with the New York State Freedom of Information Law, by deliberately imposing an arbitrary delay on the disclosure of records that are responsive to our FOIL Request. We are writing to inform you of this violation of FOIL and to formally request your immediate assistance, to encourage CB7 to comply with FOIL by immediately granting access to the requested records. The deliberate non-compliance of CB7 with FOIL and the associated denial of our rights is outrageous and we hereby ask your assistance to put a stop to it. Please advise us of any action that you are taking to help us to resolve this important matter.
- Malba Gardens Civic Association

Date: Mon, 26 Apr 2010 12:28:39 -0400

Dear Mr. Joyce:

By way of introduction, this office, a unit of the Department of State, is authorized by the Freedom of Information Law [“FOIL”; §89(1)] to provide advice and opinions relating to that statute to any person. In conjunction with that function, I have spoken with and received material from Mr. Alfredo Centola, who is particularly interested in gaining access to a certain survey which, according to CB7’s District Manager, is in your possession. She also indicated that there was an agreement among members of a Board committee that the survey would not be disclosed until the Board meets tomorrow evening.

Based on the information provided by both Mr. Centola and Ms. Bitterman, your District Manager, I offer the following comments

First, FOIL is applicable to all records of a government agency, such as CB7, and defines the term “record” in §86(4) to mean any information, in any physical form whatsoever that is kept, held, filed, produced, or reproduced by, with or for an agency. That being so, as soon as the survey existed, irrespective of its physical location, it constituted a “record” falling within the coverage of FOIL.

Second, as a general matter, FOIL is based on a presumption of access, stating that all records are available, except those records or portions of records that fall within a series of grounds for denial of access appearing in paragraphs (a) through (k) of §87(2). If my understanding of the survey is accurate, none of the grounds for denial would serve to permit the Board to withhold the information of Mr. Centola’s interest. I note that insofar as internal governmental communications, such as a survey prepared by the Board or perhaps by a consultant retained by the Board, consist of “statistical or factual tabulations or data”, §87(2)(g)(i) requires disclosure.

Third, it has been found by the courts on many occasions that a promise or agreement conferring confidentiality or its equivalent is irrelevant; in short, unless there is an exception to rights of access that may properly be asserted, records must be disclosed, notwithstanding an “agreement” or desire to withhold records.

Fourth, FOIL includes time limits within which agencies must respond to requests [see §89(3)(a)], and its statement of intent, §84, indicates that agencies, to comply with the spirit of the law, must make records available “wherever and whenever feasible.” From my perspective, when records are clearly available and readily retrievable or accessible, there is rarely a valid reason for delaying disclosure.

Next, the regulations promulgated by the Committee on Open Government (21 NYCRR Part 1401) require that each agency designate at least one “records access officer.” The records access officer has the duty of coordinating an agency’s response to requests for records. In addition, when a request is denied in whole or in part, either based on reference to an exception to rights of access or due to a failure to respond within the requisite time, the person denied access has the right to appeal pursuant to §89(4)(a). That provision indicates that the appeal would be made to the governing body, the Board in this instance, or to a person or body designated by the Board.

Lastly, Ms. Bitterman suggested that she was advised that requests for records must be made by letter. If she has been so informed, the information is inaccurate. Section 89(3)(b), an amendment to FOIL enacted in 2006, states that “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….to the extent practicable.”

I hope that the foregoing serves to enhance understanding of and compliance with FOIL. Should you have questions, or if you would like to discuss the matter, please feel free to contact me.

Robert J. Freeman
Executive Director
Committee on Open Government
Department of State
One Commerce Plaza
Suite 650
99 Washington Avenue
Albany, NY 12231
Phone: (518)474-2518
Fax: (518)474-1927


Anonymous said...

The House of Cards is falling. Get rid of the jokers! Getting scared Kelty & Apelian? If this report is accurate, you'll get yours soon enough.

Anonymous said...

Go after Kelty, Bitterman and Joyce for the apparent violation of Section 240.65 of the NYS Penal Law:

"Section 240.65 Unlawful prevention of public access to records. A person is guilty of unlawful prevention of public access to records when, with intent to prevent the public inspection of a record pursuant to article six of the public officers law, he willfully conceals or destroys any such record. Unlawful prevention of public access to records is a violation."

CB7 is willfully concealing records to prevent the public inspection of the records pursuant to Article 6 of POL (encompassing FOIL). This fact remains, whether or not CB7 discloses the records tomorrow.

A person found guilty of a violation of Section 240.65 of the Penal Law may serve up to fifteen days in jail and/or be fined up to $250.00.

Enough is enough. Call for enforcement, already.

Anonymous said...

Enough is enough. Call for enforcement, already.

Ha Ha Ha Ha Ha Ha Ha Ha Ha Ha Ha Ha Ha Ha Ha Ha Ha Ha Ha Ha Ha Ha

Thanks. I needed that!

Anonymous said...

Why was this addressed to Joyce, who was replaced by Kelty as CB7 Chair about 8 year ago?

Anonymous said...

Joyce happens to be chair of the "committee" (term used loosely) responsible for the survey that was requested be seen in original FOIL request.

Anonymous said...

Also, if you read original letter from Malba Gardens. Bitterman responded to FOIL request via email. Mr. Freeman's letter states that she was told it needed to be sent via Letter copy, if so why did she email receipt of FOIL request? SOMEONE IS LYING


The Flushing Phantom said...

Joyce works for Muss Development...who owns "The Stanton" apartments in Flushing.

H-m-m-m..lets muss around with Muss too.

What's Muss got to hide?

Anonymous said...


The buck stops there!

End those freebie dinners.

Hubby Jack could afford to lose some weight.

Anonymous said...

May I offer you a dab of vaseline ladies and gents to ease your pain?

Or do you all wish to go stoic and bend over sans lube?

Imagine Claire joined by Marilyn, Gene, Chuck, etc. in orange jump suits?

I love it!

Le Orangerie Couture for common crooks.

Ben Dover said...

Looks like there's nothing lucky about the number 7!

Now it's your turn to be screwed board members!

The community's had it up the ass from you for too long!

You sell-out sons of bitches!

Anonymous said...

Let's see if Chief Kelty can put out this fire!

Anonymous said...

I know one "old maid" member who's gonna take a royal shit reading Queens Crap this time!

Anonymous said...


CB 7 has been far too cozy with real estate developers.

I'd subpoena all members' financial records.


Ya know what...I'm dropping in to Fed Plaza this week to see an agent.

Informant said...

You forgot the "wild card"...Myra Baird Herce!

She'll fall too when I'm done.

Anonymous said...

Who the hell is she?

Anonymous said...

I dunno...but her ears must be ringing by now!

She used to be with CB7 though.

Now she's the president of the Flushing Chamber of cmmerce.

I'll bet she could tell a tale or two if the feds grab her!

Anonymous said...

Oops.. typo...Commerce!

Anonymous said...

The votes taken by this board should be null and void until this sordid affair is straightened out.

The people living in the territory controlled by CB7 deserve better!!!

Can't wait to see the heads roll!

Anonymous said...

"I know one "old maid" member who's gonna take a royal shit reading Queens Crap this time!"

The city worker from the Sewer Department who has "lived in this area for 40 years", so she says.

Anonymous said...

"Ya know what...I'm dropping in to Fed Plaza this week to see an agent."

Don't bother. Go out an have a good time instead.

The Feds know about what is going on in Flushing. An ex FBI guy is very good friends with Wellington Z. Chen, among others including those on CB#7 and staff.

I am sure the Feds are told to "look the other way" when it comes to Flushing, AKA Wellingtowne.

Anonymous said...

Kim O'hanian was the rudest most disrespectful piece of shit I have ever seen. She went so far as to say "Thats what they get for moving under a Bridge" She then proceeded to shush the audience yet spoke to Bitterman everytime someone else was speaking. One of the women in attendence came to tears as she objected to this Bitches attitude. And HALLORAN WHERE WERE YOU??????? COME OUT COME OUT WHEREVER YOU ARE. PADAVAN WHAT ABOUT YOU???????? WHERE IS THAT ROCK????

Anonymous said...

38 years and he takes the name Whitestone seriously, Where is that rock you say? WHITESTONE. Quit hiding.

Anonymous said...

Ok so I understand the meeting was last night so does this meand CB 7 is off the hook for breaking the law?
Just wondering?

So you know maybe I can steal a Ferrari and just take a ride for a week , you know than return it. Will I be off the hook?

Just asking

Anonymous said...

For the record the elected officials in our community are useless and really need to be voted out, they did nothing.