Links To PDF files of all the documents:
Ken Ivins sent me the documents associated with the FOIL by Jonathan Tingley who is the attorney representing the Pedinottis, the owners of the Mouzon House who are suing the city. According to the available documents, the FOIL was for communications between Michele Madigan and “any other person” relating to
“(1)the proposed City Center Authority parking garage (2) Section 6.4.8 of the Zoning Ordinance; the March 23, 2015 ZBA denial of the City Center Authority’s request for an area variance; or (4) the Mouzon House or David or Dianne Pedinotti”
And communications between the City Center and any member of the City Council.
As best I understand it, the city contends that it is not required to provide material that “consists of opinions, observations, recommendations, and other non-factual material between members of the City Council and representatives of the City Center Authority.”
I have been through this issue before as regards FOIL. As I understand it, when it comes to correspondence in general between public institutions, items of fact are accessible through the FOIL process but opinions, etc. are not. This has something to do with allowing officials to correspond candidly without having to worry about how their words might be interpreted or used.
Mr. Tingley also argued that the City Center was acting as a private developer and that for some reason this would exempt them from the protection that the city exercised. Attorney Izzo then argues that the City Center cannot be considered a private developer and denies the request on that basis as well.
The result of all of this are a set of emails provided to Attorney Tingley where pretty much the entire body of many of the emails is expunged. You get to see who the emails are to and who they are from as well as the date they were sent but no more. In some cases there is a salutation like “Mark,” or “Michele” and an ending like “Mark” or “Michele.”
Some History And Context
As many readers will remember, the city removed the downtown district from the restriction that solar panels cannot be shadowed by neighboring buildings or trees. The issue was precipitated by the Mouzon House which installed passive solar panels to heat water. Based on the existing ordinance, this meant that the City Center would not be able to build its garage. In light of the fact that the Pedinottis seemed to be in a sufficient rush that they did not secure a building permit or DRC approval as required before installing the units and that they chose to use non-photovoltaic units which were considerably cheaper, many people, myself among them, suspected that the purpose of the units had more to do with their conflict with the City Center than with saving energy.
Given the passions surrounding the City Center Garage there developed two narratives regarding the solar ordnance change.
The first was that the zoning law change occurred as part of a conspiracy between the City and the City Center to nullify the law protecting the Pedinotti’s solar panels so that the City Center could build its garage.
The second, and one I share, was that the Pedinotti’s actions exposed a fundamental problem with the zoning law as regards the downtown. The City’s Comprehensive Plan calls for intense development downtown. Such development necessarily entails building “up” since building out would compromise the City’s desire to maintain a greenbelt. It was noted that the very popular Northshire Book Store building could not have been constructed had either of their neighbors placed solar panels on their roofs prior to its construction.
One assumes that in his FOIL, Mr. Tingley was seeking evidence to bolster the conspiracy theory.
The first documents are the response to the original FOIL request before the appeal. There is a cover letter from City Attorney Vincent DeLeonardis. What follows are the minutes of several City Center meetings and a letter to the editor written by Michele Madigan. The next set of documents begins with a letter from City Attorney Izzo responding to the appeal by Tingley by agreeing to provide additional documents. As noted above, these additional documents are extensively redacted.
There are emails from:
- Commissioner Michele Madigan
- Commissioner Chris Mathiesen
- Commissioner John Franck
- Zoning Board of Appeals chairman William Moore
- Zoning Board of Appeals vice-chairman Keith Kaplan
- Builder Sonny Bonaccio
- Keith M. Ferraro (Works for Bonaccio)
The emails can be very confusing. Instead of blacking out text, they have whited it out. This creates extensive areas of white in the document so it is often hard to know what you are looking at. There is also the problem of many duplications of the same email. As most people know, when you respond to an email, the text from the original sender is included with your response. Due to the lack of formatting, it is impossible to tell when any individual piece of email ends. This results in repeated reproductions of emails. I did not have the patience to go through the document to determine exactly how many emails are involved. The result is that glancing through the document makes it appear that there were many, many, many redacted emails when in fact, most of them are simply duplicates.
The little text that is there shows:
- Mark Baker, the executive director of the City Center, worked hard to organize support for the zoning change.
- Sonny Bonaccio was out of town but offered to do what he could to support the change.
- Mark Baker sought clarification about the time line for the process.
- Mark Baker thanked Chris Mathiesen for his vote supporting the change.
- Mark Baker thanked Skip Scirocco for his vote supporting the change.
- Mark Baker informed Michele Madigan that Todd Shimkus and someone from Bonaccio construction would be speaking in support of the zoning change.
- Sonny Bonaccion opines that of all the members of the City Council, Michele Madigan is the only one he likes (the only amusing item in all the documents).
First it is important to understand who redacted the documents and what the process was like.
The FOIL requests all go to the City Attorney. It is his responsibility to review the documents to see whether it is appropriate to release them (redacted or not). It is my understanding that he does not consult the individuals associated with the document(s).
It is also reasonable to expect that given the litigious history of the Pedinottis that the City Attorney would be extremely cautious as to what was released. The attorney sees his role as doing everything possible to minimize the risk to the City.
I personally believe that the council acted to change the zoning law not just because the policy was problematic for the City Center but because it was problematic for the downtown. I do not see the two as mutually exclusive. I would expect that if the full text of all the redacted documents were released they would simply document that the City Center wanted the changes which is hardly revelatory and that members of the Council agreed that the change would benefit both the City Center and the entire downtown. Yes, I am conjecturing.
Just because something is legal does not mean that it should be done. I believe that it is bad public policy to be so conservative in barring the public from information about the exchanges between our city and other institutions except in the cases of such things as litigation, personnel matters, and negotiations. The excessive redacting of documents leads to the understandable suspicion that what is being hidden is somehow wrong and should be exposed. Documents should only be redacted on the same basis that some meetings can be done in executive session. Only if the subject involves litigation, personnel, or negotiations should they be hidden. The more the public can know about the actions of their government, the stronger our democratic institutions will be.
If I were king, I would require that before a City Attorney denied a FOIL request or redacted it, that the attorney would consult the author of the document to find out whether they want to exercise their right to withhold the information.
Having said that, I concede that it is by no means a simple issue. I have seen the damage a poorly crafted document can have in the hands of a skilled attorney. This is the kind of thing that people of goodwill can disagree about.