In previous posts I have noted the long and proud history of the City Democratic Party in its steadfast defense of the Greenbelt. With that in mind, I called Charlie Brown, the current Chair of the City Committee to ask if he and members of the Committee would be commenting regarding the proposed changes to the zoning of the conservation district and comp plan to accommodate Saratoga National Golf Course’s desire to expand. He told me that because of the time he had to devote to the recent primary that he was not up on the details of the changes. When I told him where he could find the information on the proposal the Council will vote on, he told me that on such a controversial issue he would not feel comfortable speaking publically on the matter. He also said that for the same reason he did not think it appropriate for the executive committee to take a position. The conversation was cordial. I expressed my disappointment and our conversation ended. A few minutes later he called me back and said on further consideration he hoped to poll the committee regarding the issue and to have the executive committee act depending upon the response. I welcomed the idea and offered to post whatever he wanted to say on my site verbatim if he wanted to send me something. This is what I received:
From: Charley Brown [email@example.com]
Sent: Saturday, September 12, 2015 12:43 PM
To: John Kaufmann
Subject: Re: test
Sorry for the late response, I have been on the phone…
Our committee issued a 9 page statement to the Comp Plan. Review committee in full support of the Green Belt concept(s) when the first changes to the RR zone was being discussed and then I, as Chair, followed up with a number of statements opposing those changes…
We, the Exec comm. and our full committee have continued to follow, and discuss, the various proposals for Saratoga National. However, the most resent proposal, which to my knowledge did not become public until late this week, has come at a time when our full attention has been focused on a primary election. Starting yesterday, I have spoken a number of our Exec about the possibility of a statement at the next City Council meeting, 4 days from now. It is our hope that Tuesday night will be only a public hearing on this issue and not be followed up by a vote….
Preparing a statement for the Tuesday night meeting does not seem likely due our long standing policy that the Chair does not speak out on particular issues unless there is a strong majority vote of the full committee supporting the statement. (The Chair speaks for the committee, not for his or herself).
I will continue speaking with the Exec. and will bring up this issue with our full committee at our next full committee meeting, Sept 19th….
While it is too bad that the decision will happen after the hearing, it looks like the City Council vote will not happen that night. In that light, Mr. Brown’s decision to have the committee directly act on the issue is to be lauded. Were the Committee to have the courage to take a stand on this issue it could very well affect the outcome.
On August 17, I emailed the Freedom of Information officer for the City of Saratoga Springs requesting all invoices from the attorney Mark Schachner as regards his work on revising the zoning laws and comp plan to address Saratoga National Golf Course’s proposal.
The city exercised its right to delay responding to the request and I finally received documents on September 10th. I have set a link to their response here. As you will see they have heavily redacted the invoices making it pretty much impossible to effectively find the information I was seeking. I was amused that they even redacted the total amount of the bills. They actually had a right to do so since the invoices may have included services other than the ones I was requesting information on. Still, this seems kind of silly to have gone to that kind of length.
I had previous issues, similar to this when I asked for the legal bills of the Saratoga Springs Housing Authority. At the time, I contacted Robert Freeman of the New York State Committee on Open Government and he provided me with the legal information to successfully challenge their lack of compliance. With that in mind, I contacted Mr. Freeman and went over what I had received from Vincent DeLeonardis, the City Attorney who was responsible for the documents I received. He confirmed the fact that they were in violation of the Freedom of Information Law and sent me an email with the citation. I am attaching that here as well.
In fact, the city had not yet received the invoice for August when I think Michele Madigan met with Mr. DeLeonardis and Mark Schachner to work out the wording for Saratoga National Golf Course so that would not have been included anyway.
Under the circumstances, I fully understand the reticence of the Mayor’s office to provide the documents I seek. It appears that the Mayor is likely to vote to support Saratoga National Golf Course. Mr. Schachner is by all accounts very skilled in land-use issues so his services do not come cheap. Still the extreme nature of the redacting surprised me. As many may recall, Mayor Yepsen ran almost exclusively on the theme of transparency. As always, I urge the readers of this blog to review the primary documents I have linked to in order to decide for themselves whether my criticisms are merited.
I will be sending a copy of the email that Freeman sent me regarding the case law to the Mayor’s office to appeal what was, in effect, a denial of my FOIL.
Here is Freeman’s response. Basically, an institution can redact things like persons names in personnel matters and other items in which privatecy concerns are clear but the rule is that without very specific good cause they cannot.
From: Freeman, Robert J (DOS) Sent: Friday, September 11, 2015 8:53 AM To: john kaufmann Subject: Emailing: Welcome to the Committee on Open Government.htm
State of New York Department of State Committee on Open Government
One Commerce Plaza 99 Washington Ave. Albany, New York 12231 (518) 474-2518 Fax (518) 474-1927 http://www.dos.ny.gov/coog/
September 30, 2003
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence, unless otherwise indicated.
I have received your letter and related materials, including a copy of a determination of your appeal rendered by Raymond J. Fashano, Superintendent of the Jamestown Public Schools.
By way of background, early in July, you asked to inspect:
“Any and all documents including attorney fees, expenses and itemization of work performed by the law firm Hodgson-Russ for the Jamestown Public School District from January 1, 2003 to present in regards to Danniel Lynn Rosen.”
Although significant aspects of the records were disclosed, “all the itemization portions of billing statements of legal services submitted by the firm of Hodgson and Russ to the…District were redacted.” Following your appeal, the Superintendent agreed that some of the material initially withheld, those portions describing the “general nature of services rendered”, should be disclosed. Nevertheless, upon review of the records made available, names and other details reflective of the nature of services rendered were deleted. You sent copies of redacted records, and some were redacted to the extent that nothing was disclosed other than the fact that a telephone call was made on a certain date and lasted for a certain duration.
From my perspective, some of the redactions appear to have been improperly made. In this regard, I offer the following comments.
First and perhaps most importantly, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law. It is emphasized that the introductory language of §87(2) refers to the authority to withhold “records or portions thereof” that fall within the scope of the exceptions that follow. In my view, the phrase quoted in the preceding sentence evidences a recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld. That being so, I believe that it 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.
The Court of Appeals, the state’s highest court, confirmed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department, stating that:
“To ensure maximum access to government records, the ‘exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption’ (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[b]). As this Court has stated, ‘[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld’ (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)” [89 NY2d 267, 275 (1996)].
Most pertinent in my view is the first ground for denial, §87(2)(a), which pertains to records that are “specifically exempted from disclosure by state or federal statute.” For more than a century, the courts have found that legal advice given by a municipal attorney to his or her clients, municipal officials, is privileged when it is prepared or imparted pursuant to an attorney-client relationship [see e.d., People ex rel. Updyke v. Gilon, 9 NYS 243, 244 (1889); Pennock v. Lane, 231 NYS 2d 897, 898, (1962); Bernkrant v. City Rent and Rehabilitation Administration, 242 NYS 2d 752 (1963), aff’d 17 App. Div. 2d 392]. As such, I believe that a municipal attorney may engage in a privileged relationship with his or her client and that records prepared in conjunction with such an attorney- client relationship may be considered privileged under §4503 of the CPLR. Further, since the enactment of the Freedom of Information Law, it has been found that records may be withheld when the privilege can appropriately be asserted when the attorney-client privilege is read in conjunction with §87(2)(a) of the Law [see e.g., Mid-Boro Medical Group v. New York City Department of Finance, Sup. Ct., Bronx Cty., NYLJ, December 7, 1979; Steele v. NYS Department of Health, 464 NY 2d 925 (1983)]. Similarly, the work product of an attorney may be confidential under §3101 of the Civil Practice Law and Rules.
In the first decision of which I am aware in which the request involved records sought under the Freedom of Information Law concerning services rendered by an attorney to a government agency, Knapp v. Board of Education, Canisteo Central School District (Supreme Court, Steuben County, November 23, 1990), the matter pertained to a request for billing statements for legal services provided to a board of education by a law firm. Since the statements made available included “only the time period covered and the total amount owed for services and disbursements”, the applicant contended that “she is entitled to that billing information which would detail the fee, the type of matter for which the legal services were rendered and the names of the parties to any current litigation”. In its discussion of the issue, the court found that: “The difficulty of defining the limits of the attorney client privilege has been recognized by the New York State Court of Appeals. (Matter of Priest v. Hennessy, 51 NY2d 62, 68.) Nevertheless, the Court has ruled that this privilege is not limitless and generally does not extend to the fee arrangements between an attorney and client. (Matter of Priest v. Hennessy, supra.)…
“There appear to be no New York cases which specifically address how much of a fee arrangement must be revealed beyond the name of the client, the amount billed and the terms of the agreement. However, the United States Court of Appeals, in interpreting federal law, has found that questions pertaining to the date and general nature of legal services performed were not violative of client confidentiality. (Cotton v. United States, 306 F.2d 633.) In that Court’s analysis such information did not involve the substance of the matters being communicated and, consequently, was not privileged…
“…Respondents have not justified their refusal to obliterate any and all information which would reveal the date, general nature of service rendered and time spent. While the Court can understand that in a few limited instances the substance of a legal communication might be revealed in a billing statement, Respondents have failed to come forward with proof that such information is contained in each and every document so as to justify a blanket denial of disclosure. Conclusory characterizations are insufficient to support a claim of privilege. (Church of Scientology v. State of New York, 46 NY 2d 906, 908.)”
In short, in Knapp, even though portions of the records containing the time billed and the amount paid for the time, it was determined that other aspects of billing statements indicating “the general nature of legal services performed”, as well as certain others, did not fall within the attorney client privilege and were available.
In the other decision dealing with the issue under the Freedom of Information Law, Orange County Publications, Inc. v. County of Orange [637 NYS 2d 596 (1995)], the matter involved a request for “the amount of money paid in 1994 to a particular law firm for legal services rendered in representing the County in a landfill expansion suit, as well as “copies of invoices, bills, vouchers submitted to the county from the law firm justifying and itemizing the expenses for 1994” (id., 599). While monthly bills indicating amounts charged by the firm were disclosed, the agency redacted “‘the daily descriptions of the specific tasks’ (the description material) ‘including descriptions of issues researched, meetings and conversations between attorney and client'” (id.).
Although the County argued that the “description material” is specifically exempted from disclosure by statute in conjunction with §87(2)(a) of the Freedom of Information Law and the assertion of the attorney-client privilege pursuant to §4503 of the CPLR, the court found that the mere communication between the law firm and the County as its client does not necessarily involve a privileged communication; rather, the court stressed that it is the content of the communications that determines the extent to which the privilege applies. Further, the court distinguished between actual communications between attorney and client and descriptions of the legal services provided, stating that:
“Thus, respondent’s position can be sustained only if such descriptions rise to the level of protected communications…
“Consequently, while billing statements which ‘are detailed in showing services, conversations, and conferences between counsel and others’ are protected by the attorney-client privilege (Licensing Corporation of America v. National Hockey League Players Association, 153 Misc.2d 126, 127-128, 580 N.Y.S.2d 128 [Sup. Ct. N.Y.Co. 1992]; see, De La Roche v. De La Roche, 209 A.D.2d 157, 158-159 [1st Dept. 1994]), no such privilege attaches to fee statements which do not provide ‘detailed accounts’ of the legal services provided by counsel…” (id., 602).
In my view, the key word in the foregoing is “detailed.” Certainly I would agree that a description of litigation strategy, for example, would fall within the scope of the attorney client privilege; clearly the Freedom of Information Law does not serve as a vehicle for enabling the public, which includes an adversary or potential adversary in litigation, to know the thought processes of an attorney providing legal services to his or her client. Similarly, because the Family Educational Rights and Privacy Act (20 USC §1232g) prohibits the disclosure of information personally identifiable to students, I agree that references identifiable to students may properly be deleted. However, as suggested in both Knapp and Orange County Publications, “descriptive” material reflective of the “general nature of services rendered”, as well as the dates, times and duration of services rendered ordinarily would be beyond the coverage of the privilege. In the context of your request and the deletions made by the District, I believe that names of students, private citizens and witnesses, for example, could be deleted on the ground that disclosure would constitute “an unwarranted invasion of personal privacy” [see Freedom of Information Law, §87(2)(b)]. Similarly, insofar as the records include information in the nature of a description of legal advice, legal strategy or similar information reflective of communications falling within the scope of the attorney-client privilege, I believe that deletions would have been proper. However, I do not believe that the name of a current or former officer or employee of the District in relation to a discussion involving the performance of that person’s duties could be withheld in every instance. For example, if the reference to a service rendered on 2/21/03, “Conferred with _______ regarding ________ for preparation for hearing and preliminary review of legal issues…” involved conferring with the Superintendent, a teacher or other school official did not include an actual description of the legal issues, there would appear to be no basis for the deletion of a name. In many instances, it appears that names of District staff, or even perhaps the name of your child, were deleted. Again, it does not appear that those deletions may be justified or proper in every instance. One entry referred to services rendered on 2/27/03 merely states: “Telephone discussion _______ regarding _______ discussed _______.” That kind of disclosure in my view does not indicate the general nature of services rendered, let alone the identification of a person with whom discussion was had.
In an effort to encourage the District to reconsider the propriety of the deletions from the materials made available to you, a copy of this response will be sent to the Superintendent.
I hope that I have been of assistance.
Robert J. Freeman Executive Director
Sustainable Saratoga has a great tree program. They have devote part of their web site to highlight the work they are doing. It has maps and fun pictures of the volunteers at work as well as some thoughtful background information on their work. Check it out Link To Website. Better yet, get involved and help them.
It looks extremely likely that Saratoga National Golf Course will get its zoning and comprehensive plan changes through the City Council.
There is a bitter irony here. In 1987 when my wife, Jane Weihe, ran for city Mayor, our friend, Ron Edsforth came up with the slogan “City In The Country” to describe the Democratic slate’s vision of maintaining low density primarily residential development on the outskirts of the city while directing higher density residential and commercial development downtown. We still have the literature and when I return I plan to scan it and post it. Since then there have been many bitter fights to maintain this vision Our city finally developed some pretty good zoning policies to strengthen that goal but not before many projects eroded much of the charm of our outer district.
Now it appears that three Democrats will be responsible for putting a major breach in the greenbelt. It is even more ironic that one of the two officials opposing the breach is a Republican.
It appears that Mayor Joanne Yepsen, Commissioner Michele Madigan, and Commissioner John Franck will be the three votes.
It seems especially foolish for Mayor Yepsen to do this because in many ways she is the most vulnerable. The newly established PAC has targeted her and Chris Mathiesen. Mathiesen is a target for his steadfast protection of the greenbelt. For Yepsen it is her conflict with the City Center and, more importantly for the PAC, it is for control of who appoints the land use boards.
Control over the land use boards is worth millions of dollars to the network of developers, lawyers, construction companies, and real estate people. They want a friendly face making those appointments and they have it in John Safford. Mr. Safford is unabashed in his zeal for growth and property rights. His recent comment on my site makes that clear. We are not talking evil here. We are simply talking about a very different approach as to what is good for our community. To his credit, Mr. Safford is quite transparent in his thinking.
So the result is that the PAC is coming for Joanne Yepsen. One would think that based on purely practical terms, Mayor Yepsen would be playing the hero in the tradition of the Democrats along with Mathiesen in her defense of our conservation district. Judging from history, the way that a Democrat wins in this city is that they solidify their base among Democrats and reach out to independents. In many ways, this was how she beat Shauna Sutton.
Instead, it appears that she is under the delusion that she can placate the business community at the expense of both the greenbelt and her own constituents. It is easy for a politician to fall into this kind of thinking. They are usually surrounded by staff who want to support her and are loathe to challenge her thinking. In the meantime, a wealthy player like Saratoga National Golf Course has the resources and the contacts to find many, many ways to schmooze someone like Mayor Yepsen to influence her thinking.
In the end, the only way to turn this kind of thing around is to turn out in force at the public hearing in the kind of numbers that offer a dose of reality to the elected officials. Have no doubt that Saratoga PAC will be doing its best to turn out their people.
John Safford is not a particularly strong candidate. While he presents himself extremely well, he is relatively new to the city. On the other hand, with the support of the PAC he should be able to generate quite a campaign in October.
The PAC is coming for Joanne and they are rigorously networking to get the word out among their network and among the Republicans to put on the full court press. Mayor Yepsen probably believes that her efforts to reach out to the business community along with her vote in support of SNGC will neutralize these forces. I think she both under estimates those forces along with the profound damage she will do to her credibility among Democrats for betraying the history of her party. She may be able to still pull off a victory anyway. Hopefully she will change her mind and come out strongly for protecting the greenbelt. We will know on Tuesday and we will know even more on Election Day.
In an unofficial tally that does not include mail in ballots. Chris Mathiesen defeated Sarah Burger 550 to 298.
As a sidebar, Sarah Burger sent out the email below on the primary day. As you will note, she alleged that she had some kind of polling numbers at 6:03 the night of the primary showing her ahead.
From: Sarah Burger [mailto:firstname.lastname@example.org] On Behalf Of Sarah Burger Sent: Thursday, September 10, 2015 6:03 PM To: =?utf-8?Q??= Subject: THREE HOURS LEFT! GOTV
In his excellent report on the League of Women Voters event, Joe Levy reported:
“Regarding the Saratoga PAC, Ms. Burger said that she spoke with their representatives earlier, but couldn’t figure out what their angle was, and decided not to accept any money from them (I guess she hadn’t seen the list of donors or she might have figured it out).”
I am a bit more skeptical than Joe on this. I asked her weeks ago whether she would seek the endorsement of the PAC and she gave me a carefully parsed, evasive answer. It was well covered by the Gazette and the Saratogian who the principal organizers of this group were and the agenda was clear to the most casual observer. According to his letter in Saratoga Today, Bob Manz interviewed her on behalf of the PAC. Mr. Manz is the CEO of D.A. Collins which is probably the largest construction company in the region. He spoke of her glowingly in his letter.
I have enough respect for Ms. Burger to find it begs credibility that she was so naïve and uninformed that she did not know “what their angle was.”
As for “she decided not to accept money from them” one wonders what she might have told them that she was either offered money from them or expected them to offer her money.