The Chronicle appeals denial of records related to sale of Lot A as a violation of the letter and spirit of the New York FOIL [Updated]

As we commented earlier, the Board of Trustees is proceeding with the sale without any real public input into a decision that will affect Crotonites for generations to come.

There can be no taller pillar of a working democracy than the public’s right to know what government is doing and to have significant input into those decisions.

Last week, in an editorial entitled “Croton residents are being shut out of one of the most important decisions the village has ever made,” we argued that that village’s refusal to divulge the contents of both the winning and losing bids to buy Lot A, by denying a New York Freedom of Information Law (FOIL) request for the proposals received in response to an RFP, denied the people of Croton any meaningful input into what would be developed at that village owned property.

We have been told that the current plan envisions a condominium project of at least 95 units on Lot A and the adjacent property, and the developer is clearly willing to pay for these properties on the assumption that it will get to do that. In denying access to either proposal, the village is also denying Crotonites the opportunity to evaluate for themselves the two proposals, and to form opinions as to whether the losing proposal might have been better for the village and its residents.

As we wrote last week:

“The village could, if it wanted to, balance the need for confidentiality against the public’s right to know, and divulge these documents if it chose to. So far, it has chosen not to. And that leaves us, the residents of Croton who will be affected by these decisions for generations to come, completely in the dark.”

Today we appealed the decision, as the FOIL allows. Under the law, the village now has 10 business days to respond. Here is our appeal. We will, of course, keep readers apprised of the results and any steps taken after that.

TO:        BRYAN HEALY, VILLAGE MANAGER, CROTON-ON-HUDSON

FROM:   MICHAEL BALTER, EDITOR, THE CROTON CHRONICLE

RE:         DENIAL OF RECORDS CONCERNING LOT A PROPOSALS

On May 9, 2024, Paula DiSanto, the designated Records Access Officer for the village of Croton-on-Hudson, partially denied a request for records related to the potential sale of the village owned property known as "Parking Lot A" to WBP Development LLC. The intention of the village to sell this land to the developer was publicly announced by the village on April 22 of this year, and discussed at a Board of Trustees meeting two days later, during which it was voted and agreed to proceed with the sale process. It was also made publicly known that the village had received two proposals in response to a Request for Proposals issued in July 2023, and that the WBP Development LLC proposal had been recommended to the Board by a task force set up to evaluate the proposals.

The FOIL request made by The Croton Chronicle on April 23, 2024 for copies of both the winning and losing proposals was denied by the Records Access Officer, citing Section 87(2)(c) of the Public Officers Law, "as information disclosure would impair present or imminent contract awards or collective bargaining agreements."

The first matter for this appeal is whether it is addressed to the right person. We have asked you a couple of times to attest that you, Bryan Healy, are the properly designated Appeals Officer. In particular, we have asked you to attest that the Records Access Officer, Paula DiSanto, independently arrived at her decision to deny the requested records, made these decisions with no input from you or discussion with you, nor at your instructions. While Ms. DiSanto would be able to consult with the village attorney, outside counsel, or other experts in making her decision, we maintain that any such consultation with you, or any direction on your part in this matter, would disqualify you as the Appeals Officer. Since we are creating a record with this appeal that could potentially be the subject of litigation should the appeal be denied, we ask that you clarify this point and preserve any and all communications and other records that pertain to it.

On the assumption that you are the proper Appeals Officer to hear this matter, here is the substance of our appeal:

1. In citing Section 87(2)(c) of the Public Officers Law as the basis for denying access to the documents sought, the Records Access Officer has misconstrued the meaning of this section. Presumably she is referring to the "contracts" clause rather than collective bargaining negotiations, which are not involved in this case. The meaning of "contract" in this section has been routinely construed to refer to contracts with an outside vendor, such as the village's landscaping company or other consultants it might hire. It does not refer to the sale of village property, which is an irrevocable action on the part of the village and is only an intermediate step in that sale. Thus the documents sought cannot be exempted under Section 87(2)(c),

2. In denying the records sought, the village is violating the guidance of New York state courts and appeal courts over nearly 40 years that, as the 1987 decision in Capital Newspapers v. Whalen put it, the "FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government." Since that decision, New York state courts and appeals courts have repeatedly upheld that basic principle of democracy and open government. In the present situation, the Request for Proposals issued in July 2023 did not promise entities submitting proposals any kind of confidentiality; moreover, with the purchase price for the property now fixed at $2.3 million, and the sale process well under way, a balancing of the public's right to know with the village's desire to keep these documents from public scrutiny falls heavily on the side of public access--especially in a situation, as mentioned above, where the decisions being made are irrevocable and the public has so far been barred from having any significant influence on them.

With these considerations in mind, we ask you to release the documents requested fully and unredacted, without further delay. We also want to remind you of your obligation to forward your decision, as with all appeals decisions, to New York's Committee on Open Government.

Respectfully submitted,

Michael Balter, Editor/Publisher

The Croton Chronicle

Update: As Village Manager Bryan Healy knows or should know, the Records Access Officer and the Appeals Officer cannot be the same person under the NY FOIL:

1401.7 Denial of access to records.

(a) The governing body of a public corporation or the head, chief executive or governing body of other agencies shall determine appeals or shall designate a person or body to hear appeals regarding denial of access to records under the Freedom of Information Law.

(b) Denial of access shall be in writing stating the reason therefor and advising the person denied access of his or her right to appeal to the person or body designated to determine appeals, and that person or body shall be identified by name, title, business address and business telephone number. The records access officer shall not be the appeals officer.

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