October 25, 2021

Harford man discovers limits of NY records law

Travis Dunn/staff reporter

Mike Clark, shown here working at Clark’s Market in Dryden, discovered the limits of New York’s Freedom of Information Law when he tried to obtain police and court documents on the two men accused of stealing his John Deere tractor last year. Cortland County denied his request as well as his appeal to that denial.

On March 26, 2019, Mike Clark’s John Deere tractor and Gator utility vehicle were stolen from his camp site on Owego Hill Road in Harford. Total value, including accessories and tools: About $40,000.

Police arrested two men — Santo Oliver and Glen Brenchley III — on charges connected to the theft.

Then they were released without bail.

That got Clark’s attention. He had heard of Oliver and knew he had an extensive criminal background.

This was before bail reform. Clark wanted to know how Oliver was able to get out of jail so easily. There had to be some kind of mistake.

He called Cortland County District Attorney Patrick Perfetti. Clark wanted answers, and the D.A., he thought, was the logical person to ask.

Instead, he got nothing. To his surprise, his efforts — which he thought were commonplace requests for public information — were rebuffed.

“They just didn’t want to give me any information,” Clark said.

Now Clark was seriously ticked off. He also became determined to get to the bottom of whatever was going on.

He turned to New York’s Freedom of Information Law, or FOIL. Like the federal Freedom of Information Act it is modeled on, FOIL is intended as a tool for citizens to access public records. In theory, most of those records should be open to public inspection. In practice, that has not always been the case.

Clark learned this the hard way. Nearly a year after his tractor was stolen, Clark has none of the information he sought.

Filing a FOIL request

Clark kept pushing. On April 18, 2019, he filed two FOIL requests with Cortland County’s FOIL officer, Legislature Clerk Eric Mulvihill.

One FOIL request was for Oliver, the other for Brenchley. Both requests asked for information on the cases, including police reports, accusatory instruments and supporting depositions.

He also asked for information on future court dates and criminal histories.

Clark’s request was denied. Mulvihill, in consultation with Perfetti, denied the request based on several exceptions to public disclosure in state law.

Exactly how much of that request was denied has been disputed by Chief Assistant County Attorney Wendy Franklin. She said the county did provide some documents.

But Clark insists he got nothing from the county. The only documents he did get — a few pages of interview transcript — came from Marathon Town Court, where the cases had been moved from Harford, he said.

Clark was told he was denied access partly because, according to New York Public Officers Law Sec. 87, 2(a), those records “are specifically exempted from disclosure by state or federal statute.”

He was also told that, according to Sec. 2(e) of the same law, the requested records are compiled for law enforcement purposes, which, if disclosed, would:
• Interfere with law enforcement investigations or judicial proceedings,

• Deprive a person of a right to a fair trial or impartial adjudication,

• Reveal criminal investigative techniques or procedures, except routine techniques and procedures.

FOIL has four law enforcement exemptions. Mulvihill cited three of them. The one he did not cite claims that disclosure would “identify a confidential source or disclose confidential information relating to a criminal investigation.”

Appeal denied

Clark took the next step offered by FOIL: He appealed the denial to Cortland County Attorney Karen Howe.

In his June 14 appeal letter, Clark wrote “that this denial may not be appropriate for a couple of reasons.”

For instance, his request could not, as the county claimed, interfere with law enforcement investigations or judicial proceedings because “the investigation is no longer pending,” a fact he said was confirmed by Cortland County Sheriff Mark Helms.

Clark argued that “in no way would this information deprive anyone of a right to a fair trial or impartial adjudication,” as the county claimed, because “the trial and court sessions are being held in courts out of my area.”

He also argued against the county’s claim the investigative techniques in this case were secret — the information had been posted by his family on Facebook and “replied to by a witness of the crime in progress,” and that information “was then relayed to the sheriff’s department.”

He further took issue with the county claiming exemptions according to unspecified state and federal statutes, because the case had not been sealed and the offenders were not juveniles.

He requested that the county “explain the reasons for the denial fully in writing as required by law.”

His appeal was denied on June 21, 2019. Then-Chief Assistant County Attorney David Hartnett wrote that after speaking with an unidentified member of the D.A.’s office, “I believe that Mr. Mulvihill was correct in denying your request due to the cited statutes.” No further explanation was provided.

‘Blanket denial’

Clark took the final step offered by FOIL — he took his case to the top, to the state Committee on Open Government.

On Aug. 12, 2019, then-acting director Kristin O’Neill replied that “the county’s blanket denial of access is likely overbroad and inconsistent with the law.”

But while determining that the county’s response was mostly in the wrong, O’Neill also pointed out that the county was correct to deny part of the request, since Clark had also asked for “future court dates and a criminal history.”

She pointed out that “FOIL governs access to existing records and does not require an agency to answer questions, provide information that does not exist in record form, or to create a new record in response to a FOIL request.” Insofar as Clark, in asking for future information and a broad “criminal history,” was asking for the county to create records it didn’t have, the county was right to deny that part of his request.

But regarding most of the two FOIL requests, O’Neill sided with Clark.

“FOIL is based upon a presumption of access,” she wrote.

Agencies can only withhold records or portions of those records as they fall under the various exemptions.

According to O’Neill, FOIL “also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.”

She then cited case law to support her view that FOIL precludes blanket denial of FOIL requests.

The county was also in error in claiming exemption based on state or federal statute but then failing to name specific statutes.

Moreover, the county failed to “fully explain in writing to the person requesting the record the reasons for further denial.” The county’s appeal denial, O’Neill wrote, simply repeated Mulvihill’s original denial and “clearly did not in any instance ‘fully explain’ the reasons for further denial.”

Perfetti, however, stands by the county’s denial of Clark’s FOIL request.

“The FOIL request was denied because at the time it was made it was an ongoing investigation,” Perfetti said. “The matter is still an ongoing criminal prosecution. For those reasons, the FOIL request was not honored. That’s about all I can say about it.”

FOIL foiled

Now what?

Now nothing. It’s over.

O’Neill’s opinion was just that — an opinion.

“We provide advisory opinions,” O’Neill said Thursday. “We do not have enforcement authority.”

Clark had only one option left to him — to file an Article 78 lawsuit against Cortland County for denying his FOIL request. He had four months to do that — a window that passed months ago.

“If Mr. Clark hasn’t done anything yet, he is probably out of luck,” O’Neill said.

Clark said his request shows how toothless New York’s FOIL law can be, unless you are an attorney, or want to spend the money to hire one. Clark decided not to pursue the case in court.

“People told me, ‘Mike, unless you push this, unless you want to take this through the courts, it’s going to get lost,” he said.

That bothers him, because he feels like the county is getting away with denying him access to records he is entitled to have.

“They’re not following the statues of the law, and they don’t care,” Clark said.