An Exploration of FOIL Re: Digital Ballots

As the readers of this blog know, Saratoga County has denied repeated FOIL requests from professor Robert Turner for the digital images of ballots from the last election.  According to the Gazette Newspaper, the New York State Department of State Committee on Open Government issued an opinion that argued that these images are covered under FOIL.  I contacted Mr. Freeman and he sent me a copy of his opinion.  I thought reviewing this opinion might help the readers of this blog to better understand FOIL (Freedom of Information Law).

Robert Freeman is the executive director of the New York State Department of State Committee on Open Government.  In February of 2014 he issued an opinion regarding whether the digital images of election ballots were accessible to the public under the Freedom of Information Law.  In his letter he affirmed that they were.

I summarize his major points here.  For those not familiar with FOIL his letter offers some insight into the law.

He states:

“First, FOIL is expansive in scope, for it pertains to all government agency records.”

He notes the very broad interpretation of what is a record:

“Section 86(4) of that statute defines the term record to include ‘any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever…’” 

Under this broad definition he asserts that ballot images held by the county boards of elections constitute “records.”

He notes that the concept of FOIL is “…based on a presumption of access. “  This means that the onus of proving that records are not accessible falls on the holder of the records.  There are exceptions to FOIL and the custodian of the records must prove that one of these exceptions pertains to those records in order to deny access to them.  These exceptions are listed in §87(2) of the FOIL law.

Mr. Freeman then asserts that the digital images do not fall under any of the exceptions.

At the time he was writing this opinion he was addressing the denial by Putnam County of their ballot images.  According to his letter, Putnam County denied the records based on section §87(2)(a) of FOIL in conjunction with §3-222 of the Election Law.  Section 87(2)(a) states that in order to deny access to the item it must be “…specifically exempted from disclosure by state or federal statute”

Mr. Freeman rejected the assertion that the ballot images were exempt asserting that “…there is nothing in the language of subdivision (1) of §3-222 [JK: Election Law] specifying that electronic images of ballots cast are confidential or “exempted from disclosure.”

To emphasize this point he noted that the Court of Appeals [JK: The highest court in New York] and the federal courts must, in order to assert records are “confidential” or “exempted from disclosure by statute”, document that the law pertaining to the records has clear and specific language that states this.

Both the Court of Appeals and federal courts have determined that the characterization of records as “confidential” or “exempted from disclosure by statute” must be based on statutory language that specifically confers or requires confidentiality.

Freeman writes:

“In short, to be “exempted from disclosure by statute,” both state and federal courts have determined that a statute must leave no discretion to an agency: it must withhold such records.”

 He notes that election law states that:

‘”Voted ballots shall be preserved for two years after such election and the packages thereof may be opened and the contents examined only upon order of a court or judge of competent jurisdiction…”’

As such the actual ballots are exempt from the FOIL law.  The important point here is that the law makes no such condition regarding the “images” of these ballots.  They are therefore available under FOIL.

It’s Freeman’s Opinion But The Courts Have Not Resolved The Issue

Mr. Freeman and his office are not, however, the final arbiters of what is FOILable.  It is the courts of New York who, in the end, decide the issue.

I would have preferred that Saratoga County had used Freeman’s opinion and released the images of the ballots.  Essex County is being sued over this same issue.  The plaintiffs won their initial suit in court but Essex County has filed notice of their intent to appeal the decision to the New York State Court of Appeals.  Legally, the county is fully within its rights to deny Robert Turner’s FOIL request until such time as the Court of Appeals rules on the case.

One never knows how courts will rule but based on Mr. Freeman’s extensive knowledge and long history, it is reasonable to be optimistic.

 

 

 

Wesley Health Care Center Found Wanting By Medicare

Medicare maintains a website that publishes their assessments of nursing homes.  Currently an assessment of the Wesley Health Care Center is not very flattering.

Their overall rating gets two stars out of five which Medicare characterizes as below average.  The result of health inspections gets two stars out of five for a below average rating.  Their staffing gets three stars which is considered average.  Their quality measures gets three stars for average.   

This is a link to the Medicare page: https://www.medicare.gov/nursinghomecompare/results.html#loc=12866&lat=43.0964412&lng=-73.7242486

 

 

Another Big One May Go Up On Broadway

385Broadway

Peter Rosecrans and Burns Management have plans to construct a building with 72 apartments and retail space at 385 Broadway.  The building will have five floors and will have 117,000 square feet.  We are back to the micro –apartment concept.  There would be 26 ranging in size from 520 to 660 square feet.  The other units would range in size from 800 to 1,500 square feet.  These would have one and two bedrooms.  Rents would start in the $1,250.00 per month range.  The project is projected to cost about $20,000,000.00. 

This is the same firm that is developing a 105 apartment complex at Excelsior Park.   

Tom Newkirk of Saratoga National Golf Course fame owns the property which he purchased in 2011 for $2,000,000.00.

The developer claims the building will have a gym, fiber optic internet, and possibly a doorman.

He is quoted in the Albany Business Journal as saying, “It is exciting, but there is complexity to this.  It is kind of like building a ship in a bottle.” 

He is working with Phinney Design Group.

He hopes to have the existing building down by February.

 Missing from the Albany Business Review article was where he expected all these people to park.

 

City Proceeds With Lake Avenue Bike Lanes

At their Monday, July 2,  meeting, the City Council voted to initiate an engineering study for the bike lanes for Lake Avenue.  A dozen people addressed the Council at the hearing that preceded the vote.  All spoke in support of the plan.  The city voted to accept a grant for up to $50,000.00 for a survey, an engineering study, and installation of bike-lane signage from the New York State Department of Transportation. According to the Gazette  Commissioner of Public Safety Peter Martin said the bike lanes could happen next year.

 

 

Public Safety Commissioner Martin Responds On Lake Avenue Bike Lane Plans

I received a response from Public Safety Commissioner Peter Martin regarding Chris Mathiesen’s letter expressing reservations about the Lake Avenue bike lane proposal..

The full text is below but I want to offer some observations on his emails.

Commissioner Martin makes a very compelling argument rejecting Mathiesen’s recommendation about an alternative bike route.  Commissioner Martin asserts that a study done on bike usage shows that Lake Avenue is one of the most actively used roads as regards bike traffic.  It seems more than reasonable to assume that bike riders will continue to ride the full length of Lake Avenue even if a safer route along Caroline or York Avenue were available.  If the goal of the bike lane is not only to encourage bike riding but more importantly, to make bike riding safer, it is important to make Lake Avenue as safe as possible.

In fact, Mr. Martin references a study done by Creighton Manning in 2016 that stated that “…adding  5’ bike lanes to Lake Avenue…. would provide traffic calming which will also provide a more pedestrian friendly environment.”

Commissioner Martin also asserts that very few parking spaces will be lost by implementing his plan.  He observes that currently people park along the Eastside Recreational Fields in a haphazard manner and that he is working with the school system that manages the fields to create a more efficient parking pattern.  This could minimize the impact of the lost parking spaces.

Still, while it is regrettable to inconvenience some home owners in removing their on-street parking, Martin points out that all these homes have driveways. In the interest of pursuing the public good, it can be argued that the change would be worth it.

Commissioner Mathiesen’s critique pointed out that Lake Avenue has a narrow stretch.  Mr. Mathiesen explained in his letter that the city’s employee who dealt with traffic control, was concerned about the impact of increasing this constriction by adding two five foot bike lanes to this stretch.   Commissioner Martin did a power point presentation at the last City Council meeting.  In one of the graphics shown this problematic stretch has some lines superimposed on the image indicating where Lake Avenue might be widened by a future road project.  In his follow up email me he simply offers that this will be an area that may need additional work in the future.  While I would have preferred something more thought out, I am willing to accept that if this bottle neck ends up being a problem that the city will invest whatever may be necessary to rectify it in the future.

I applaud Commissioner Martin’s efforts to expand and improve the city’s bike trail system.

I am putting a link to the power point presentation he did for the City Council meeting.  The images show a rendering of the bike lanes along sections of Lake Avenue.  There is also a map documenting the intensity of bike use on the streets of our city.

Unfortunately, if the readers of this blog do not have power point installed on their computer, they will not be able to view the graphics.  I asked Commissioner Martin to provide me with the images of  Lake Avenue and the map of bike use intensity so that I could post them on my site to make them accessible to more of my readers .  I was quite troubled by his response.  He declined my request on the basis that the renderings are tentative and are subject to change once the engineering studies are done.  As you will read in his email, he believed that in order to understand their tentative nature, the graphics had to be presented as part of his power point presentation. 

Power Point Presentation

This excess of caution probably reflects his career as a lawyer.  I think he badly underestimates the readers of this blog.  The graphics include large lettering stating on each image that they are “drafts.”  The substance of his emails also make clear that the bike lanes as proposed are subject to change as the project matures.

One other note, in a joint letter that appeared in the Saratogian today, Sunday, Todd Shimkus who is the executive director of the Chamber of Commerce and Art Holmberg who is the president of Sustainable Saratoga endorsed the Lake Avenue bike lane project.


From: Peter Martin [peter.martin@saratoga-springs.org]
Sent: Thursday, June 28, 2018 8:42 PM
To: John Kaufmann
Subject: Re: Follow up
Attachments: Lake Avenue Bike Lanes Revised 4.pptx

Dear John,
I was traveling on vacation when I saw your first e-mail.  Please pardon the delayed response.  I have attached a power-point which I presented at our most recent city council meeting.
I have reviewed the Reader’s View submitted by Chris Mathiesen, my predecessor as Public Safety Commissioner and was struck by two things:
1.        Every fact that he states is honest and correct; and
2.        His conclusions are flawed because he missed several additional pertinent facts and the analysis of several national experts in this area.
Let me start by stating that Chris Mathiesen is a friend and I respect many of his
accomplishments as he served our city, both on the city zoning board (where he served as chairperson) and on the city council.  This does not mean that I agree with every position that he took in his many years of City service and, specifically, I disagree with his conclusions that resulted in the failure to improve the safety of our City by striping Lake Avenue with Bike Lanes.

I have spoken with many residents who live on and near Lake Avenue, as well as many
residents who travel to the schools, churches, and recreation field on that street.  There is no unanimous choice about whether to mark bike lanes on this street, although the large majority of those who have spoken to me, support marked bike lanes here.  This majority includes many residents who currently ride on Lake Avenue on their bicycles – both adults and children.  As explained in my presentation, the attached slide titled “Current Bicycle Traffic . . .” is a STRAVA heat map representing the number of riders who use GPS for their bike trips.  By this measure, Lake Avenue is one of the most heavily traveled bike routes in Saratoga Springs.  In addition to recreational through-riders, I have spoken with students who ride to practice at the Rec. Fields and adults who commute on Lake Ave. to work.  There is, today, a bike-safety issue on Lake Avenue and the proposed bike lanes address this issue.
Many of the residents who have spoken to me about Lake Avenue note the number of large trucks that use that rode as well as the perceived speed with which many vehicles travel.  I agree that both present a challenge to safety as the road is currently marked.  This challenge affects pedestrians crossing Lake Avenue and other drivers as well as bicyclists traveling along the street.  National studies show that designated bike lanes help calm traffic and direct vehicles to the travel lanes, away from pedestrians and cyclists.   In 2016, the Department of Public Safety commissioned a report titled “Pedestrian Safety Audit and Recommendations”, which was prepared by two engineering firms, Creighton Manning and Alta Planning and Design.  In pertinent part, this report recommended “adding  5’ bike lanes to Lake Ave.  This would provide
traffic calming which will also provide a more pedestrian friendly environment.”
It should be noted that only a portion of the parking along Lake Avenue would be lost to
accommodate the bike lanes.  Although we are working with concept drawings until we
commission and receive engineered scaled drawings, we do not anticipate losing parking
between Regent St. and East Ave., and only one side of the street parking between East Ave and Ritchie Place.  The aforementioned Pedestrian Safety Audit states : ” It may require the park’s (East Side Rec’s) parking to be restructured though, in order to accommodate the loss of on street parking.”  This is most certainly an appropriate time to work on improved safety for parking at the East Side Rec because the Saratoga Springs City School District just approved funding for their Great Outdoors Project, which includes significant enhancements to the East Side Rec.  Adding legal, safe parking along the northwestern corner of the East Side Rec. should be possible and would be a very positive improvement.  We expect that improved bike accessability throughout Saratoga Springs will reduce the automobile traffic that is the subject of so many complaints.
In his opinion piece, Mr. Mathiesen suggested that bike lanes could be added to smaller side streets rather than Lake Avenue.  This is not practical for several reasons.  First, many of the recommended streets are not wide enough to support bike lanes.  Also, they cross other major streets at points that are not as well marked, or that lack traffic signals which protect bikers.

Further, bikers, like pedestrians, frequently choose to take the shortest distance between two points, and inconvenient bike routes will not cause them to change their travel patterns.

We will engage surveyors and engineers to design bike lanes on Lake Avenue that improve the safety  for all who travel along this heavily used street.  In my power-point presentation, I included  two pictures from Madison Avenue in Albany, which is State Route 20.  It has been reported that those bike lanes, which were controversial when first proposed, are heavily used by bikers and enjoy great popularity.

John, these proposed bike lanes are just one of several Complete Street accommodations that can improve the lives, the health and the safety of our residents and guests in Saratoga Springs.

Accommodations for alternative modes of transportation are necessary for the success of our city in the 21st century.

Peter R. Martin
Commissioner of Public Safety
City of Saratoga Springs
_____________________________________
City Hall, 474 Broadway
Saratoga Springs, NY 12866
Phone: (518) 587-3550 ext. 2627
Email: peter.martin@saratoga-springs.org
_____________________________________

 


 

From: Peter Martin <peter.martin@saratoga-springs.org> Date: June 29, 2018 at 2:40:12 PM EDT To: John Kaufmann <john.kaufmann21@gmail.com> Subject: Re: Follow up

Dear John,

The overhead street photos that were incorporated in the power-point presentation represent a concept drawing only.  They are marked draft because we expect that the final engineered drawings will have some differences.  I would prefer that they only be presented as part of the powerpoint, because they should not be interpreted as final plans.  The engineer who prepared these concept drawings has informed me that Lake Ave can support safety improvements for bike riders from Regent eastward past the Eastside Rec. and St. Clements Church.  The exact location of bike lanes and transitions at the East Side Rec. may take one configuration initially, and then be revised if the city and the school district improve the parking situation along the narrower stretch  that you have asked about.  I will request engineered reports that provide alternatives that can further enhance pedestrian and bicycle safety along Lake Ave. over time.

One additional thought about the alternatives on side streets.  As I previously mentioned, crossing a major intersection from a side street is more dangerous than crossing at a signaled intersection along a major thoroughfare.  Further, side streets like York do not connect many of the popular destinations that Lake connects.  Bicyclists would then be left to unmarked streets to reach these popular destinations (e.g. Lake Ave. Elementary).

I hope that the council and the citizens embrace this proposal as good start to the advantages of complete streets in Saratoga Springs.

Thank you for your interest in this proposal.

Peter

 

Peter R. Martin Commissioner of Public Safety City of Saratoga Springs _____________________________________ City Hall, 474 Broadway Saratoga Springs, NY 12866 Phone: (518) 587-3550 ext. 2627 Email: peter.martin@saratoga-springs.org _____________________________________

 

From: “John Kaufmann” <john.kaufmann21@gmail.com> To: “Peter Martin” <peter.martin@saratoga-springs.org> Cc: “Meg Kelly” <meg.kelly@saratoga-springs.org>, “Skip Sciroco” <skip.scirocco@saratoga-springs.org>, “Michele Madigan” <michele.madigan@saratoga-springs.org>, “John Franck” <johnfranck@your-cpas.com> Sent: Friday, June 29, 2018 7:34:04 AM Subject: RE: Follow up

Thank you for your very thoughtful response.  I do have one question.

Mr. Mathiesen expressed concern about the narrow section of Lake Avenue as a problem.  As I read your map, you identify this as a possible area for what appears to be widening of the street to address this issue.  I have no idea as to the cost or other potential obstacles to doing this but as I understand your plan, the striping would be done prior to any project to widen the street.  Could you offer your thoughts about this particular concern.

As  I understand it, Mr. Mathiesen does not envisage the bike lanes along the alternate route he proposes as exclusive but rather he sees them as “sharrows” which would mitigate the issue of limited space.  Still, I take your point that people will see Lake Avenue as the fastest route and tend to continue to use it.

Also, I would like to post the map and the images of the roads that appeared in your power point presentation.  Would it be possible to get a copy of these images?

My plan is to post the text of your email along with the pictures should you make them available on my site with little in the way of comment by me.  As I understand it, the council will be voting on the plan at the next meeting so I would like to get the post up as soon as possible.  Please advise me at your earliest convenience as to the availability of the images.  If they are not available I will post your comments immediately.

Again, thank you for your long and thoughtful email.