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Kingston's Refusal to Release Records Regarding City Fire Chief Salzmann

Kingston's Refusal to Release Records Regarding City Fire Chief Salzmann

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Published by Daily Freeman
Decision dated Feb. 2, 2012.
Decision dated Feb. 2, 2012.

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Published by: Daily Freeman on Feb 03, 2012
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City of Kingston
Office of the Corporation Counsel 
City Hall 420 Broadway Kingston, New York 12401Telephone (845) 331-0080 Extension 3947  Fax (845) 334-3959
February 2, 2012Paul KirbyDaily Freeman79 Hurley AvenueKingston, New York 12401Re: Foil AppealDear Mr. Kirby:
I am in receipt of your appeal dated January 24, 2012 of the prior determination that certainrecords regarding Former Fire Chief Richard Salzmann are protected from disclosure pursuant to theprovisions of Public Officer’s Law §87. The following constitutes my decision regarding your appeal.On January 24, 2012 a communication was submitted by e-mail transmission to John Tueyrequesting “time sheets and vacation records of former Fire Chief Richard Salzmann for the years of 2009 – 2011”. On or about January 24, 2012, a response was sent to your office which denied therequest on the grounds that the requested records are protected pursuant to Public Officer’s Law §87(2)(e)(i)(ii) which provides that an agency may deny access to records that have been “compiled for lawenforcement purposes and which, if disclosed, would: interfere with law enforcement investigations or judicial proceedings [and would] deprive a person of a right to a fair trial or impartial adjudication”.It is well accepted that the intent of the Freedom of Information Law “is to shed light ongovernment decision making, which in turn both permits the electorate to make informed choicesregarding governmental activities and facilitates exposure of waste, negligence and abuse” (Matter of Encore v. SUNY, 87 N.Y.2d 410 (1995) (internal citations omitted)). The presumption of disclosure willbe rebutted if the requested documents fall within one of the enumerated exceptions set forth in thePublic Officers Law. The Public Officers law specifically exempts records which are compiled for law enforcementpurposes. This exemption is founded on the principle that “[f]airness in law enforcement investigationsand judicial proceedings is a fundamental principle of our democratic society” (New York Times v. Cityof New York Fire Department, 195 Misc.2d 119 (New York County Supreme Court, 2003)). The City of Kingston acknowledges that the Committee on Open government has found that thelaw enforcement exemption does not apply to records which are compiled in the ordinary course of business which later become relevant in an investigation or litigation (See, New York State Committeeon Open Government, AO 11765; AO 11228). The City also acknowledges that the records were created
 
in the usual course of business of the City of Kingston prior to the commencement of the investigationregarding Mr.- 2 -Salzmann, and the records later became relevant in the investigation. It is the finding of this appealsofficer that the aforementioned advisory opinions of the Committee on Open Government areinconsistent with binding case-law regarding the use of the term “compiled for law enforcementpurposes”. This issue was specifically addressed by the New York County Supreme Court in New York Timesv. City of New York Fire Department, supra., 195 Misc.2d 119, wherein the Court, citing to the UnitedStates Supreme Court in John Doe Agency v. John Doe Corp., 493 U.S.146, held that “‘compiled’ meansthe time when the reply to a FOIL request has to be performed, not when the documents are originallycollected and assembled by the government agency . . . The important point in time as to ‘compiling’ of documents is not when they are created or initially received, but when they would be gathered fordisclosure under FOIL. That is the time when their disclosure would have an effect on law enforcementinvestigations, judicial proceedings, or a person who is to be or is being tried”.No authority has been found to support the conclusions of the New York State Committee onOpen Government in AO 11765 and AO 11228 regarding the use of the term “compiled”.In the New York Times v. Fire Department case cited above, a FOIL request was made for “[a]lltranscripts of interviews conducted by the department with members of the FDNY concerning theevents of Sept. 11, 2001”. The initial FOIL request was denied, and an administrative appeal was alsodenied. The New York Times filed an Article 78 proceeding requesting a determination that the recordswere not protected.After determining that the records were “compiled” for law enforcement purposes, the Courtdetermined that these “oral histories” were not protected. The Supreme Court held that “the allegationof depriving persons of a fair trial was only added in a totally conclusory fashion in the administrativeappellate determination of the FOIL request”. The Court also found that the argument that the recordsare protected was only supported by a claim from the United States Attorney who stated that therecords “are potential evidence in the guilt and penalty (if there is a conviction) phases of the trial”.In affirming the decision, the Court of Appeals explained that the records were not protectedbecause the records were already in the possession of both the prosecution and the defense and“therefore their public disclosure would not give the equivalent of disclosure to either side in thecriminal case”. In addition, the records at issue were not specifically related to the defendant butrather to the attacks in general (New York Times v. City of New York Fire Dept., 4 N.Y.3d 477)Clearly, for a litany of reasons, the circumstances involving Mr. Salzmann are not comparable tothe circumstances surrounding Zacarias Moussaoui and the World Trade Center attacks and the recordsrequested herein are not comparable to the records in the New York Times case. The informationsought by the Daily Freeman is not in the possession of the possible defendant, it has not been widelydisseminated, and it is not tangential to the ongoing investigation. Moreover, the City’s position thatthe requested records are protected pursuant to POL §87(2)(e)(i)(ii) was made clear in the initialresponse to the FOIL request rather than as an afterthought in this administrative appellatedetermination.It is beyond contest that the requested records have been compiled by law enforcement andforwarded to the Ulster County District Attorney for investigation. It is the opinion of the undersignedthat release of the requested records would compromise the public’s right to a complete and fairinvestigation by the District Attorney. More importantly, such a release of information wouldcompromise Mr. Salzmann’s absolute right to defend against any allegations raised against him.Moreover, if charges are filed, release would potentially compromise any potential jury pool.

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