D.A. and County Compromise on FOIL Appeals

Concerns about ongoing criminal investigations

By Holly Crocco

It appears a compromise has been reached between the County Legislature and district attorney Robert Tendy regarding Freedom of Information Law (FOIL) requests made to his office.

Currently, if someone seeks information from the county that falls under the FOIL, a request must be made with the county clerk, who is the public records officer. If the clerk determines that those records are not public information, he denies the request. The person seeking the records may file an appeal, which goes to the county executive, who typically consults with the law department before making a determination.

However, an exemption exists for the sheriff’s office. If a request to that department is denied, the sheriff determines if the information should be released.

During the Rules Committee meeting in February, Tendy asked legislators to amend local law to allow for the same exemption to be applied to requests made of his office, giving him final say over appeals rather than the county executive.

Since that meeting, the law department determined that changing the local law to reroute FOIL appeals would “alter and diminish” the powers of an elected official – in this case the county executive – and therefore require a referendum. If approved by voters, it would go to the state for approval.

During the March 16 Rules Committee meeting, County Attorney Jennifer Bumgarner said the D.A.’s office has since suggested that – instead of beginning the lengthy process of a referendum – the law department work with his office to come up with parameters to make sure any information being sought does not in interfere with ongoing criminal investigations.

“My office certainly doesn’t have any objection because all the things he describes are what the FOIL provides any way,” said Bumgarner.

Dini LoBue (R-Mahopac Falls) was critical of Tendy’s opinion that a FOIL request made by a news reporter in November be denied because the person was seeking information involving a criminal investigation.

According to the FOIL request, the person sought “the contract between Putnam County and an independent outside agency hired by the Putnam County district attorney’s office to assist in the investigation into the Nov. 14, 2015, crash on Route 6 in Mahopac involving Richard O’Keefe,” a retired Carmel police officer who pleaded guilty in February to criminally negligent homicide in a crash that killed a Somers woman.

While Tendy said that information was not public, the county law department decided it was and released the information.

With the law department and D.A.’s office willing to work together, LoBue said she is confident that future FOIL requests will be handled according to the law while also maintaining confidentiality when appropriate.

“I’m happy to see the D.A.’s office is willing to compromise,” she said at the March 16 meeting. “We would really be doing a disservice by changing the law.”

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