D.A. Wants Control of FOIL Appeals to His Office

Says it’s illegal for county executive to review some requests

By Holly Crocco

Putnam County District Attorney Robert Tendy asked county legislators on Feb. 15 to amend a law regarding Freedom of Information Law (FOIL) requests for information from his office. As written, the law is “inadvertently illegal,” he said.

Tendy told lawmakers at the Rules Committee meeting that current procedure requires a person seeking information from the county to file a FOIL request with the county clerk. If the clerk determines the records are not public, he denies the request, and the person seeking the records must appeal to the county executive. The only exception is information requested from the Sheriff’s Department. Those appeals go the sheriff.

Putnam D.A. Robert Tendy (photo provided)

While Tendy said almost every county in New York also has a similar exception for the district attorney’s office, Putnam does not. The D.A. asked that the law be changed to allow him to consider appeals for requests for information from his office, rather than the county executive, because most documents related to ongoing investigations cannot be legally viewed by anyone other than his office, the sheriff’s office or the court, he said.

“This must be addressed,” Tendy said. He said the issue came up after a reporter filed a FOIL request for a contract and report “from a confidentially-retained agency regarding an ongoing criminal investigation.” The request was denied but Tendy said he released the information anyway because it was not worth the time and cost to answer any appeal made to the county’s Supreme Court.

Barbara Scuccimarra (R-Philipstown) said the proposed change made sense.

“You’re handling sensitive material and sensitive cases,” she said. “Why would you put it out to the public? That would be a liability for the people involved.”

But Dini LoBue (R-Mahopac Falls) expressed reservations, noting the law had been in effect since 1981. She argued that under state law, the contract — not the details of the criminal investigation — is public information.

Tendy disagreed. “Actually, you’re not correct,” he said.

This difference of interpretation is why the law should not be changed, LoBue responded. “This needs to be thoroughly vetted,” she said. “As far as I know, we’ve never had an issue with it; the county hasn’t been sued with respect to denial of records through the D.A.’s office.”

Tendy again disagreed.

“Every county in the state — in fact in the country — has it this way” as proposed, he said. “To continue with a law that is manifestly illegal, I believe, is foolish. How am I going to give the county executive a sealed indictment?”

There was also a difference of opinion about how a change would be made. According to the law department, if the County Legislature approves the amendment, it would need to go to a public referendum in November because it “curtails” the power of an elected official. Tendy countered that the change could be made by the Legislature because the county executive doesn’t have the power in question.

2 Responses to "D.A. Wants Control of FOIL Appeals to His Office"

  1. Patty Villanova   March 2, 2017 at 10:45 am

    Could this be a power grab by DA Tendy? I don’t know, but I do know this: Putnam County’s compliance with the FOIL is horrible and something needs to be done about it. The attitude that most of the agencies have is that all records are secret and don’t even think of asking us to comply with the law.

    A recent example of what I have gone through trying to get records from the Putnam County Visitors’ Bureau, a.k.a. the tourism agency, is instructive. This agency is now being run by two people: local politico Barney Molloy, who is the chairman of the agency’s Board of Directors, and Frank Smith, another Pataki loyalist who took over when she resigned. By the way, Mr. Smith is a full-time law school student who is seldom, if ever, in his office. Nevertheless, he does pick up a nice check for his salary.

    Depending on whom you talk to, either Molloy or Smith are responsible for fulfilling FOIL requests for the agency. However, if it’s someone like me, a taxpayer activist who’s been a thorn in their side, they will do everything in their power to ignore and/or slow-walk the requests indefinitely. There is no fear of reprisal because (in my opinion) both of these gentlemen appear to have “protected” status, i.e., they are “Friends of MaryEllen.” Thus, they can thwart the FOIL with impunity.

    But I digress. For the past five years I have been trying to work with the Visitors’ Bureau to get money for Cold Spring tourism. In fairness to Ms. Pataki, she was helpful and generous during the time she ran the agency and in return for all the sales tax and other revenue that Cold Spring generates, we did at least get some services, including funds for advertising and promotion.

    Once she left, the state Attorney General started investigating, and Smith and Molloy took over in 2016, the funding that was committed for Cold Spring was stopped. The faucet was turned off for no reason, and I became persona non grata because I dared to question what was going on with the agency by filing several FOIL requests with the County Clerk, who is the general records access officer. It turned out that instead of giving Cold Spring the funding that we needed and deserved, the money was being given to events and projects in Mahopac and Eastern Putnam that were of dubious and questionable value.

    Getting back to the FOIL issue: Molloy and Smith ignored my requests and they were referred to the County Law Department, which further delayed them. However, many months later, after a lot of excruciating work and correspondence on my part, I finally had the FOIL requests fulfilled by the Law Department by someone who seemed to understand there was a problem.

    The records I received indicated, in a nutshell, how Cold Spring was being screwed and where the taxpayer money was going. Instead of spending the budget allocation on the county’s biggest tourist attraction, i.e., Cold Spring, thousands were being spent and continue to be spent on salaries for no-show jobs, poorly designed and failing websites, events that nobody goes to, etc. No wonder that Molloy and Smith wanted to keep the info secret.

    The problem with Putnam’s lack of compliance with the FOIL is so ingrained and part of the the political culture that it will take a much bigger fish than DA Tendy to deal with it. We need to have some state agency, maybe the Inspector General’s office (?), come in and take a look and maybe force compliance. Of course this is wishful thinking on my part because the people who run the County and control the purse strings like things just the way they are.

    We taxpayers have the ultimate power. When in doubt, vote them out. Let’s use it.

  2. Diana Hird   March 14, 2017 at 2:58 pm

    It is standard for separate government agencies to have their own FOIL officers. The DA’s request is particularly warranted. From my experience as an enforcement lawyer at a federal agency, I can tell you that the distinction between a closed investigation and an ongoing investigation is more complicated than you might imagine.

    That said, the problem of untrained FOIL officers and bad government record-keeping is a nationwide problem. It took me just short of a year to get a four-page financial statement from the U.S. Department of Housing and Urban Development.